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CASES 


ON  THE 


LAW  OF  REAL  PROPERTY 


SELECTED  BY 

Prof.  JASPER  C.  GATES 

Detroit  College  of  Law,  Detroit,  Mich. 


St.  Paul,  Minn. 
WEST  PUBLISHING  CO. 

1898 


Copyright,  1898, 

BY 

WEST  PUBLISHING  COMPANY. 


T 


TABLE  OF   CONTENTS. 


I,    WHAT  IS  REAL  PROPERTY. 

Minerals. 

Page 

Goodard  v.   Winchell 3 

Trees  and  Crops. 

Kingsley  v.  Holbrook 6 

Carney  v.  Mosher 9 

Riparian  Proprietors. 

Trustees  of  Schools  v.  Schroll 10 

Illinois  Cent.  R.  Co.  v.  State  of  Illinois 13 

Howe  V.  Andrews 26 

Mastenbrook  v.  Alger 28 

Smith  V.  Youmans 30 

Underground  Waters. 

Ocean  Grove  Camp  Meeting  Ass'n  v.  Com- 
missioners of  Asbury  Park 34 

Willis  V.  City  of  Perry 36 

Border  Trees. 

Lyman  v.  Hale 41 

Itobiuson  v.  Clapp 43 

Things  Groxiring  on  Land. 

Brackett  v.  Goddard 52 

Emblements. 

Graves  v.  Weld 53 

Bradley  v.  Bailey 55 

Fixtures. 

Walker  v.  Sherman 57 

Lassell  v.  Reed 65 

Harris  v.  Scovel 67 

Smith  V.  Blake 68 

Michigan  Mut.  Life  Ins.  Co.  v.  Cronk 69 

Equitable   Conversion. 

Craig  V.  Leslie 70 

Bolton  V.  Myers 75 


II.    ESTATES  IN  REAL  PROPERTY. 

(a)  AS  TO  QUANTITY. 
Fee  Simple  and  Fee  Tail. 

Adams    v.    Ross 76 

Brown  v.  Addison  Gilbert  Hospital 79 


Estates  per  Autre  Vie. 

Mosher  v.  Yost 


Page 
.     91 


Legal    Life    Estates. 

Curtesy. 

Barr  v.  Galloway 93 

Dower. 

Thompson  v.  Morrow 9<5 

Stoughton  V.  Leigh 98 

Stanwood  v.  Dunning 100 

Woods  V.  Wallace 102 

PuUing  V.  Pulling's  Estate 104 

Hodges  V.  Phinney 106 

Moore  v.  Harris 107 

Free  v.  Beatley 109 

McKelvey  v.  McKelvey 110 

Homestead. 

Black  V.   Singley. Ill 

Hoffman  v.  Buscliman 113 

Myers  v.  Weaver 114 

Hitchcock  V,  Misner 115 

Jointure. 

Caruthers  v.  Caruthers 116 

Taylor  v.  Taylor 118 

Taft  V.  Taft 120 

Thompson  v.  Tucker-Osbom 122 

Waste. 

Keeler  v.  Eastman 120 

Loomis  V.  Wilbur 127 

Webster  v.  Peet 128 


Estates  Less  Than  Freehold. 

Estate  for  Years. 
Horner  v.  Den • . . . . 


130 


Merger. 


80 


Boykin   v.  Ancrum 

Conventional  Life  Estates. 

xMerritt  v.  Scott 83 

Watkins  v.  Green 85 

Wooster  v.  Cooper 87 


Estate  from  Year  to  Year. 
Brant  v.  Vincent 132 

Tenancy  at  Sufferance. 
Russell  V.  Fabyan 133 

Covenants  Running  with  the  Land. 
Trask   v.   Graham 136 

Estoppel  to  Deny  Lessor''s  Title. 
Newman  v.  Rutter 137 

Termination. 
Bedford  v.  M'Elherron 139 

Landlord  atid  Tenant. 

Huntington  v.  Parkhurst 140 

Ladd  V.   Brown 143 

Wineman  v.  Phillips 144 

(b)  AS  TO  QUALITY. 

Estates   on   Condition. 

^^'arne^  v.  Bennett 147 


Incuv^brances. 

Foster  v.  Hilliard 88 

GATES.R.P.  (iii) 


Estates  on  Limitation. 

Henderson  v.  Hunter 149 


729904 


iv 


Pace 
150 


Mortgages. 

What  Is  a  Mortgage. 

Helm  V.  Boyd 

What  can  be  Mortgaged. 

Neligh  V.  Michenor 153 

Equitahle  Mortgage. 

Russell's  Appeal   156 

Priority. 
George  v.  Kent , 15S 

Accounting. 
Gaskell  v.  Viquesney 159 

(c)  EQUITABLE   ESTATES. 
Tlie  Statute  of  Uses. 

Witham  v.  Brooner 162 

Use  upon  a  Use. 
Jackson   v.   Gary 163 

Express  Trust. 

Eipper  t.  Benner 165 

Hamilton  v.  Hall's  Estate lo^ 

Chapman  v.  Chapman l^t) 

White  V.  Rice I'J- 

Resulting  Trust. 

Perkins  v.  Nichols I'^S 

Constructive  Trust. 

Goldsmith    v.   Goldsmith 1J4 

Connolly  v.  Keating 1;!.0 

Moore  v.  Crawford 1' J 

Rice  V.  Rice I's* 

Creditors  of  Cestui  Que  Trust. 

Spring  V.  Randall 185 

(d)  FUTURE  ESTATES. 
Reversions. 

Cook  V.  Hammond 187 

Possibility  of  Reverter. 
Slegel  V.  Herbine 191 

Remainders. 

Hunt  V.  Hall 197 

Hovey  v.  Nellis 198 

L'Etourneau  v.  Henquenet 200 

Alternate  Remalyiders. 
AVhitesides  v.  Cooper 208 

Rule  in  Shelley's  Case. 

Hardage  v.  Stroope 211 

Earnhart  v.  Earnhart 214 

Silva  V.  Hopkinson 215 

Defreese  v.  Lake 216 

Executory  Devises. 

Hopkins  v.  Hopkins 221 


TABLE  OF  CONTENTS. 

Estates  in  Co-Partnersliip. 


Dyer  v.  Clark 


Page 
,  231 


Future   Uses. 
Wvman  v.  Brown 


223 


Poivers. 

Brown  v.  Phillips 227 

(e)  JOINT  ESTATES. 

Joint  Tenancies — Estates  in  Entirety. 

Thomburg  v.  Wiggins 228 


m.   INCORPOREAL   HEREDITA- 
MENTS. 

Easements. 

Post  T.  Pearsall 234 

Rights  of  Way. 

Bowen  v.  Conner 236 

Right  to  Lateral  Support. 

Thurston  v.  Hancock 238 

Right  to  Subjacent  Support. 
Jones  V.  Wagner 241 

Rents. 

Sacheverel  v.  Frogate 243 

IV.   TITLE. 

Acquisition  by  State. 

Eminent  Domain. 
Kohl  V.  United  States 245 

Grant  by  United  States. 

Moore  v.  Bobbins 240 

Description. 

Bou7idarles. 
City  of  Joliet  v.  Werner 253 

Delivery. 

Miller  v.   Meers 255 

Crowley  v.  C.  N.  Nelson  Lumber  Co 260 

Covenants. 

Against  Incumbrances. 

Cole  V.  Kimball 264 

Pendill   v.    Marquette   County    Agricultural 
Soc 266 

Warranty. 

Withy  V.  Mumford 268 

Welbon  v.  Welbon 270 

Title  by  Estoppel. 

Blakeslee  v.  Sincepaugh 271 

Gray  v.  Crockett 273 

Sumner  v.  Seaton 2(  < 

Title  by  Adverse  Possession. 

Sherin  v.   Brackett 283 

Dean  v.  Goddard 284 

Whitaker  v.  Erie  Shooting  Club 287 

Title  by  Accretion. 

Lovingston  v.  St.  Clair  County 289 

Tatum  V.  City  of  St.  Louis 292 

Price  V.  Hallett 295 

Title  by  Devise. 

Ives  V.  AUyn 300 

Fuller,  Ex  parte 301 

Carmichael  v.  Lathrop 304 

Title  by  Descent. 

Salem  Nat.  Bank  v.  White 308 

Carpenter's  Estate,  In  re 311 


CASES   REPORTED. 


Page 
Adams  v.  Ross  (30  N.  J.  Law,  505) 76 

Barr  v.  Galloway  (Fed.  Cas.  No.  1,037,  1 

McLean,  476) 93 

Bedford  v.  M'Elherron  (2  Serg.  &  R.  49).  .  139 
Black  V.  Singley  (51  N.  W.  704,  91  Mich. 

50)    Ill 

Blakeslee  v.  Sincepaugh   (24  N.   Y.   Supp. 

947,  71  Hun,  412) 271 

Bolton   V.   Myers   (40   N.    E.   737,    146   N. 

Y.  257)    75 

Bowen  v.  Conner  (6  Gush.  132) 236 

Boykin  v.  Aucrum  (6  S.  E.  305,  28  S.  C. 

486) 80 

Brackett  v.  Goddard  (54  Me.  309) o2 

Bradley  v.  Bailey   (15  Atl.  746,   56  Conn. 

374)    55 

Brant  v.  Vincent  (59  N.  W.  169,  100  Mich. 

426)   132 

Brown  v.  Addison  Gilbert  Hospital  (29  N. 

E.  625,  155  Mass.  323) 79 

Brown  v.  Phillips   (18  Atl.   249,   16  R.   I. 

612)     .227 

Carmichael  v.  Lathrop   ([xMlch.]  66  N.  W. 

350)    304 

Carney  v.  Mosher  (56  N.  W.  935,  97  Mich. 

554)     9 

Carpenter's  Estate,  In  re  (32  Atl.  637,  170 

Pa.  St.  203) •  •  ■ .  •   311 

Caruthers   v.   Oaruthers    (4   Brown,   0.    C. 

500)    116 

Chapman  v.   Chapman  ([Mich.]  65  N.  W. 

215)    170 

City  of  Chicago  v.  Illinois  Cent.  R.  Co.  (13 

Sup.  Ct.  110,  14()  U.  S.  387) ■■•■■■■     1^ 

City  of  Joliet  v.  Werner  ([111.  Sup.]  46  N. 

E.  780)    2o3 

Cole  V.  Kimball  (52  Vt.  6.39) •••••:•;  ^^'^ 

Connolly  v.  Keating   (60  N.  W.  289,   102 

Mich.   1) •  •  •  •  •  •  :   1'6 

Cook  V.  Hammond  (Fed.  Gas.  No.  3,lo9,  4 

Mason,  467)   18^ 

Craig  V.  Leslie  (3  Wheat.  563-576) (0 

Crowley    v.    C.    N.    Nelson    Lumber    Co. 

([Minn.]  69  N.  W.  321) 260 

Dean  v.  Goddard  (56  N.  W.  1060,  55  Minn. 

290)    284 

Defreese  v.  Lake  ([Mich.]  67  N.  W.  505).  .  210 
Dyer  v.  Clark  (5  Mete.  [Mass.]  562) 231 

Earnhart  v.  Earnhart  (26  N.  E.  895,  127 

Ind.  397)    214 

Eipper  v.  Benner  ([Mich.]  71  N.  W.  511) .  .   165 

Foster  v.  Hilliard  (Fed.  Cas.  No.  4,972,  1 
Story,  77)   88 

Free  v.  Beatlev  (54  N.  W.  910,  95  Mich. 
426)    109 

Fuller,  Ex  parte  (Fed.  Cas.  No.  5,147,  2 
Story,  327)  301 

Gaskell  v.  Viquesney   (23   N.   E.   791,   122 

Ind.  244) 150 

George  v.  Kent  (7  Allen.  !(>) 158 

Goldsmith   v.    Goldsmith    (39    N.   E.    1067, 

145  N.  Y.  313)  174 

Goodard  v.  Winchell   (52  N.  W.  1124,   86 

Iowa,  71)   3 

Graves  v.  Weld  (5  Barn.  »S:  A.lol.  10.5) 53 

Gray    v.   Crockett   (10   Pac.   452,   35   Kan. 

66) 273 

GATES,R.P. 


Page 
Hamilton  v.  Hall's  Estate  ([Mich.]   69  N. 

W.  484) 167 

Hardage  v,  Stroope  (24  S.  W.  490,  58  Ark. 

303)   211 

Harris  v.  Scovel  (48  N.  W.  173,  85  Mich. 

32)    6? 

Helm  V.  Boyd  (16  N.  E.  85,  124  111.  370) . . .   150 

Henderson  v.  Hunter  (.59  Pa.  St.  335j 149 

Hitchcock   V,    Misner   ([Mich.]    69    N.    W. 

226)    115 

Hodges  V.  Phinney  ([Mich.]  64  N.  W.  477)  106 
Hoffman  v.  Buschman  (55  N.  W.  458,  95 

Mich.  538) 113 

Hopkins  v.  Hopkins  (Cas.  t.  Talb.  44) 221 

Horner  v.  Den  (25  N.  J.  Law,  106) 130 

Hovey  v.  Nellis  (57  N.  W.  255,  98  Mich. 

374)    198 

Howe  V,  Andrews  (26  Atl.  394,  62  Conn. 

398)   26 

Hunt  V.  Hall  (37  Me.  363) 197 

Huntington  v.   Parkhurst  (49  N.  W.  597, 

87  Mich.  38) 140 

Illinois  Cent.  R.  Co.  v.  State  of  Illinois  (13 

Sup.  Ct.  110,  146  U.  S.  387) 13 

Ives  V.  AUyn  (13  Vt.  629) 300 

Jackson  v.  Gary  (16  Johns.  302) 1G.1 

Jones  V.  Wagner  (66  Pa.  St.  429) 241 

Keeler  v.  Eastman  (11  Vt.  293) 126 

Kingsley  v.  ll.ilbronk  (45  N.  H.  313) 6 

Kohl  v.  United  Stales  (91  U.  S.  367) 245 

Ladd  V.  Brown  (53  N.  W.  1048,  94  Mich. 

136)    143 

Lassell  v.  Reed  (6  Greenl.  222) 65 

Lauer,  Appeal  of  (23  Atl.  996,  148  Pa.  St. 

236) 191 

L'Etourneau  v.  Heuquenet  (50  N.  W.  1077, 

89  Mich.  428) 200 

Licht  V.  Nellis  (57  N.  W.  255,  98  Mich.  374)  198 
Loomis  V.  Wilbur  (Fed.  Cas.  No.  8,498,  5 

Mason,  13)   127 

Lovingston  v.  St.  Clair  County  (64  111.  5()).  .  289 
Lyman  v.  Hale  (11  Conn.  177) 41 

McKelvey  v.  McKelvey  ([Mich.]  70  N.  W. 

582)    110 

Mastenbrook  v.  Alger   ([Mich.]  68   N.   W. 

213)    28 

Merritt  v.  Scott  (81  N.  C.  385) S3 

Michigan  Mut.  Life  Ins.  Co.  v.  Cronk  (52 

N.  W.  1035.  93  Mich.  4'J) 69 

Miller  v.  Meers  (40  N.  E.  577,  155  111.  284)  255 
Moore  v.   Crawford   (9   Sup.   Ct.   447,   130 

U.  S.  122) 177 

Moore  v.  Harris  (4  S.  W.  439.  91  Mo.  616)  107 

Moore  v.  Bobbins  (96  U.  S.  .5.30) 249 

Mosher   v.  Yost  (33  Barb.  277) 91 

Mvers  v.  Weaver  (59  N.  W.  810,  101  Mich. 

477)    114 

Neligh  V.  Michenor  (11  N.  J.  Eq.  539) 153 

Newman  v.  Butter  (8  Watts,  51) 137 

Ocean  Grove  Camp-Meeting  Ass'n  v.  Com- 
missioners of  Asbury  Park  (3  Atl.  168, 
40  N.  J.  Eq.  447)   34 

Pendill  v.  Marquette  County  Agricultural 

Soc.  (55  N.  W.  384,  95  Mich.  491) 266 

Perkins  v.  Nichols  (11  Allen,  542) 173 

(V) 


vi 


CASES  REPORTED. 


Page 

Post  V.  Pearsall  (22  Wend.  425) 234 

Price  V.  Hallett  ([Mo.  Sup.]  38  S.  W.  451)  295 
Pulling  V.  PuUing's  Estate  (56  N.  W.  765, 
97  Mich.  375) 104 

Rice  V.  Rice  ([Mich.]  65  N.  W.  103) 184 

Robinson  v.  Clapp  (32  Atl.  939,  65  Conn. 

365)    43 

Russell  V.  Fabyau  (34  N.  H.  218) 133 

Russell's  Appeal  (15  Pa.  St.  319) 156 

Sacheverel  v.  Frogate  (1  Vent.  161) 243 

Salem  Nat.  Bank  y.  White  (42  N.  E.  312, 

159  III.  136)  308 

Sherin  v.  Brackett  (30  N.  W.  551,  36  Minn. 

152)   283 

Silva  V.  Hopkinsou  (41  N.  E.  1013,  158  111. 

386)    215 

Slegel  V.  Herbine  (23  Atl.  996,  148  Pa.  St. 

236) 191 

Smith  V.  Blake  (55  N.  W.  978,  96  Mich.  542)  68 
Smith  V.  Youmans  ([Wis.]  70  N.  W.  1115)  30 
Spring  V.  Randall  ([Mich.]  64  N.  W.  1063)  185 

Stanwood  v.  Dunning  (14  Me.  290) 100 

State  of  Illinois  v.  Illinois  Cent.  R.  Co.  (13 

Sup.  Ct.  110,  146  U.  S.  387) 13 

Stoughton  V.  Leigh  (1  Taunt.  402) 98 

Sumner  v.  Seaton  (19  Atl.  884,  47  N.  J. 

Sq.  108)   277 

Taft  V.  Taft  (40  N.  E.  860,  163  Mass.  467)  120 
Tatum  V.  City  of  St.  Louis  (28  S.  W.  1002, 

125  Mo.  647)   292 

Taylor  v.  Taylor  (33  N.  E.  532,  144  111.  436)  118 


Page 
Thompson  V.  Morrow  (5  Serg.  &  R.  2S9).  .  96 
Thompson  v.  Tucker-Osborn  ([Mich.]  69  N. 

W.   730)    122 

Thornburg  v.  Wiggins  (34  N.  E.  999,  135 

Ind.  178) 228 

Thurston  v.  Hancock  (12  Mass.  220) 238 

Trask  v.  Graham  (50  N.  W.  917,  47  Minn. 

571)    136 

Trustees  of  Schools  v.  SchroU  (12  N.  E.  243, 

120  111.  509) 10 

AValker  v.  Sherman  (20  Wend.  636) 57 

Warner  v.  Bennett  (31  Conn.  468) 147 

Watkins  v.  Ureeu  (60  N.  W.  44,  101  Mich. 

493)    85 

Webster  v.  Peet  (56  N.  W.  558,  97  Mich. 

326)    128 

Welbon  v.  Welbon  ([Mich.]  67  N.  W.  338)  270 
Whitaker  v.  Erie  Shooting  Club  (60  N.  W. 

983,  102  Mich.  454) 287 

White  V.  Rice  ([Mich.]  70  N.  W.  1024) 171 

Whitesides  v.  Cooper  (20  S.  E.  295,  115  N. 

C.  570)    208 

Willis  V.  City  of  Perry  (60  N.  W.  727,  92 

Iowa,  297) 36 

Wineman    v.   Phillips    (53   N.    W.    168,   93 

Mich.  223)    144 

Witham  v.  Brooner  (63  111.  344) 162 

Withy  V.  Mumford  (5  Cow.  137) 268 

Woods  V.  Wallace  (10  Fost.  384) 102 

Wooster  v.  Cooper  (33  Atl.  1050,  53  N.  J. 

Eq.  682)   87 

Wyman  v.  Brown  (50  Me.  139) 223 


ILLUSTRATIVE  CASES 


ON    THE 


LAW  OF  REAL  PROPERTY. 


GATES,R.P.  (1)* 


WHAT  IS  REAL  PROPERTY. 


GOODARD  V.  WINCHELL.  \ 

(52  N.  W.  1124,  86  Iowa,   71.) 
Supreme  Court  of  Iowa.     Oct.  4,   1892. 

Appeal  from  district  court,  Winnebago 
county;    John  C.  Sherwin,  Judge. 

Action  in  replevin.  The  subject  of  the  con- 
troversy is  an  aerolite.  In  the  district  court 
the  cause  was  tried  without  the  aid  of  a  jury, 
and  the  court  gave  judgment  for  the  plaintiff, 
from   which   the  defendant  appealed. 

C.  B.  Elliot,  C.  H.  Kelley,  and  W.  S.  Pat- 
tee,  for  appellant.  Peters  &  Fisher  and  W. 
E.  Bradford,  for  appellee. 

GRANGER,  J.  The  district  court  found 
the  following  facts,  with  some  others,  not  im- 
portant on  this  trial:  "That  the  plaintiff, 
John  Goodard,  is,  and  has  been  since  alx)ut 
1857,  the  owner  in  fee  simple  of  the  north 
half  of  section  No.  three,  in  township  No. 
ninety-eight,  range  No.  twenty-five,  in  Winne- 
bago county,  Iowa,  and  was  such  owner  at 
the  time  of  the  fall  of  the  meteorite  herein- 
after referred  to.  (2)  That  said  land  was 
prairie  land,  and  that  the  grass  privilege  for 
the  year  1890  was  leased  to  one  James  Elick- 
son.  (3)  That  on  the  2d  day  of  May,  1890, 
an  aerolite  passed  over  northern  and  north- 
western Iowa,  and  the  aerolite,  or  fragment 
of  the  same,  in  question  in  this  action,  weigh- 
ing, when  replevied,  and  when  produced  in 
court  on  the  trial  of  this  cause,  about  66 
pounds,  fell  onto  plaintiff's  land,  described 
above,  and  buried  itself  in  the  ground  to  a 
depth  of  three  feet,  and  became  imbedded 
therein  at  a  point  about  20  rods  from  the  sec- 
tion hne  on  the  north.  (4)  That  the  day  after 
the  aerolite  in  question  fell  it  was  dug  out  of 
the  ground  with  a  spade  by  one  Peter  Hoag- 
laud,  in  the  presence  of  the  tenant,  Elickson; 
tliat  said  Hoagland  took  it  to  his  house,  and 
claimed  to  own  same,  for  the  reason  that  he 
had  found  same  and  dug  it  up.  (5)  That  on 
May  5,  1890,  Hoagland  sold  the  aerolite  in 
suit  to  the  defendant,  H.  V.  Winchell,  for 
$105,  and  the  same  was  at  once  taken  posses- 
sion of  by  said  defendant,  and  that  the  pos- 
session was  held  by  him  until  same  was  taken 
under  the  writ  of  replevin  herein;  that  de- 
fendant knew  at  the  time  of  his  purchase 
that  it  w-as  an  aerolite,  and  that  it  fell  on  the 
prairie  south  of  Hoagland's  land.  *  *  *  (lO) 
I  find  the  value  of  said  aerolite  to  be  one 
hundred  and  one  dollars  (-^lOll  a.s  verbally 
stipulated  in  open  court  by  the  parties  to  this 
action;  that  the  same  weighs  about  66  pounds, 
is  of  a  black,  smoky  color  on  the  outside, 
showing  the  effects  of  heat,  and  of  a  lighter 
and  darkish  gray  color  on  the  inside;  that  it 
is  an  aerolite,  and  fell  from  the  heavens  on 
the  2d  of  May,  1890;  that  a  member  of  Hoag- 
land's family  saw  the  aerolite  fall,  and  di- 
rected him  to  it."  As  conclusions  of  law,  the 
district  court  found  that  the  aerolite  became 
a  part  of  the  soil  on  which  it  fell;  that  the 
plaintiff  was  the  owner  thereof;  and  that  the 
act  of  Hoagland  in  removing  it  was  wrongful. 


It  is  Insisted  by  appellant  that  the  conclusions 
of  law  are  erroneous;  that  the  enlightened 
demands  of  the  time  in  which  we  live  call  for, 
if  not  a  modification,  a  hberal  construction, 
of  the  ancient  rule,  "that  whatever  is  affixed 
to  the  soil  belongs  to  the  soil,"  or,  the  more 
modern  statement  of  the  rule,  that  "a  perma- 
nent annexation  to  the  soil,  of  a  thing  in  itself 
personal,  makes  it  a  part  of  the  really."  In 
behalf  of  appellant  is  invoked  a  rule  alike 
ancient  and  of  undoubted  merit,  "that  of 
title  by  occupancy;"  and  we  are  cited  to  the 
language  of  Blackstone,  as  follows:  "Occu- 
pancy is  the  taking  possession  of  those  things 
which  before  belonged  to  nobody;"  and 
"whatever  movables  are  found  upon  the  sur- 
face of  the  earth,  or  in  the  sea,  and  are  un- 
claimed by  any  owner,  are  supposed  to  be 
abandoned  by  the  last  proprietor,  and  as  such 
are  returned  into  the  common  stock  and  mass 
of  things;  and  therefore  they  belong,  as  in  a 
state  of  nature,  to  the  first  occupant  or  find- 
er." In  determining  which  of  these  rules  is 
to  govern  in  this  case,  it  will  be  well  for  us 
to  keep  in  mind  the  controUing  facts  giving 
rise  to  the  different  rules,  and  note,  if  at  all, 
wherein  the  facts  of  this  case  should  distin- 
guish it.  The  rule  sought  to  be  avoided  has 
alone  reference  to  what  becomes  a  part  of  the 
soil,  and  hence  belongs  to  the  owner  thereof, 
because  attached  or  added  thereto.  It  has 
no  reference  whatever  to  an  independent  ac- 
quisition of  title;  that  is,  to  an  acquisition  of 
property  existing  independent  of  other  prop- 
erty. The  rule  invoked  has  reference  only  to 
property  of  this  independent  character,  for  it 
speaks  of  movables  "found  upon  the  surface 
of  the  earth  or  in  the  sea."  The  term  "mov- 
ables" must  not  be  construed  to  mean  that 
which  can  be  moved,  for,  if  so,  it  would  in- 
clude much  known  to  be  realty;  but  it  means 
such  things  as  are  not  naturally  parts  of  earth 
or  sea,  but  are  on  the  one  or  in  the  other. 
Animals  exist  on  the  earth  and  in  the  sea, 
but  they  are  not,  ui  a  proper  sense,  parts  of 
either.  If  we  look  to  the  natural  formation 
of  the  earth  and  sea,  it  is  not  difficult  to 
understand  what  is  meant  by  "movables," 
within  the  spirit  of  the  rule  cited.  To  take 
from  the  earth  what  nature  has  placed  there 
in  its  formation,  whether  at  the  creation  or 
through  the  natural  processes  of  the  acquisi- 
tion and  depletion  of  its  particular  parts,  as 
we  witness  it  in  our  daily  observations,  wheth- 
er it  be  the  soil  proper  or  some  natural  de- 
posit, as  of  mineral  or  vegetable  matter,  is 
to  take  a  part  of  the  earth,  and  not  mova- 
bles. 

If,  from  what  we  have  said,  we  have  in 
mind  the  facts  giving  rise  to  the  rules  cited, 
we  may  well  look  to  the  facts  of  this  case  to 
properly  distinguish  it.  The  subject  of  the 
dispute  is  an  aerolite,  of  about  dG  pounds' 
weight,  that  "fell  from  the  heavens"  on  the 
land  of  the  plaintiff,  and  was  found  three 
feet  below  the  surface.  It  came  to  its  posi- 
tion in  the  earth  through  natural  causes.  It 
was  one  of  nature's  deposits,    with  nothing 


WHAT  IS  REAL  PROPERTY. 


in  its  material  composition  to  malie  it  foreign 
oi  imnaturnl  to  the  soil.  It  was  not  a  mov- 
able thing  "on  the  earth."  It  was  in  the 
earth,  and  in  a  very  significant  sense  im- 
movable; that  is,  it  was  only  movable  as 
parts  of  earth  are  made  movable  by  the  hand 
of  man.  Except  for  the  peculiar  manner  in 
which  it  came,  its  relation  to  the  soil  would 
be  beyond  dispute.  It  was  in  its  substance, 
as  we  understand,  a  stone.  It  was  not  of  a 
character  to  be  thought  of  as  "unclaimed  by 
any  owner,"  and,  because  unclaimed,  "suppos- 
ed to  be  abandoned  by  the  last  proprietor," 
as  should  be  the  case  under  the  rule  invoked 
by  appellant.  In  fact,  it  has  none  of  the 
characteristics  of  the  property  contemplated 
by  such  a  rule. 

We  may  properly  note  some  of  the  particu- 
lar claims  of  appellant.  His  argument  deals 
with  the  rules  of  the  common  law  for  acquir- 
ing real  property,  as  by.  escnear.  occupancy, 
prescription,  forfeiture,  and  ahenation,  which 
it  is  claimed  were  aU  the  methods  known, 
barring  inheritance.  We  need  not  question 
the  correctness  of  the  statement,  assuming 
that  it  has  reference  to  original  acquisition, 
as  distinct  from  acquisitions  to  soil  already 
owned,  by  accretion  or  natural  causes.  The 
general  rules  of  the  law,  by  which  the  owners 
of  riparian  titles  are  made  to  lose  or  gain  by 
the  docti-ine  of  accretions,  are  quite  familiar. 
These  rules  are  not,  however,  of  exclusive 
application  to  such  owners.  Through  the  ac- 
tion of  the  elements,  wind  and  water,  the  soil 
of  one  man  is  taken  and  deposited  in  the  field 
of  another;  and  thus  all  over  the  country, 
we  may  say,  changes  are  constantly  going  on. 
By  these  natural  causes  the  owners  of  the 
soil  are  giving  and  taking  as  the  wisdom  of 
the  controlling  forces  shall  determine.  By 
these  operations  one  may  be  affected  with  a 
substantial  gain,  and  another  by  a  similar 
loss.  These  gains  are  of  accretion,  and  the 
deposit  becomes  the  property  of  the  owner  of 
the  soil  on  which  it  is  made. 

A  scientist  of  note  has  said  that  from  six 
to  seven  hundred  of  these  stones  fall  to  our 
earth  annually.  If  they  are,  as  indicated  in 
argument,  departures  from  other  planets,  and 
if  among  the  planets  of  the  solar  system 
there  is  this  interchange,  bearing  evidence  of 
their  material  composition,  upon  what  prin- 
ciple of  reason  or  authority  can  we  say  that 
a  deposit  thus  made  shall  not  be  of  that  class 
of  property  that  it  would  be  if  originally  of 
this  planet  and  in  the  same  situation?  If 
these  exchahges  have  been  going  on  through 
the  countless  ages  of  our  planetary  system, 
who  shall  attempt  to  determine  what  part  of 
the  rocks  and  formations  of  especial  value  to 
the  scientist,  resting  in  and  upon  the  earth, 
are  of  meteoric  acquisition,  and  a  part  of 
that  class  of  property  designated  in  argument 
as  "unowned  things,"  to  be  the  property  of 
the  fortunate  finder  instead  of  the  owner  of 
the  soil,  if  the  rule  contended  for  is  to  obtain? 
It  is  not  easy  to  understand  why  stones  or 
balls  of  metallic  iron,  deposited  as  this  was, 


should  be  governed  by  a  different  rule  than 
obtains  from  the  deposit  of  boulders,  stones, 
and  drift  upon  our  prairies  by  glacier  action; 
and  who  would  contend  that  these  deposits 
from  floating  bodies  of  ice  belong,  not  to 
the  owner  of  the  soil,  but  to  the  finder?  Their 
origin  or  source  may  be  less  mysterious,  but 
thej',  too,  are  "telltale  messengers"  from  far- 
off  lands,  and  have  value  for  historic  and  sci- 
entific investigation. 

It  is  said  that  the  aerolite  is  without  adap- 
tation to  the  soil,  and  only  valuable  for  sci- 
entific purposes.  Nothing  in  the  facts  of  the 
case  will  warrant  us  in  saying  that  it  was  not 
as  well  adapted  for  use  by  the  owner  of  the 
soil  as  any  stone,  or,  as  appellant  is  pleased 
to  denominate  it,  "ball  of  metallic  iron." 
That  it  may  be  of  gi-eater  value  for  scientific 
or  other  puiijoses  may  be  admitted,  but  that 
fact  has  little  weight  in  determining  who 
should  be  its  owner.  We  cannot  say  that  the 
owner  of  the  soil  is  not  as  interested  in,  and 
would  not  as  readily  contribute  to,  the  great 
cause  of  scientific  advancement,  as  the  finder, 
by  chance  or  otherwise,  of  these  silent  mes- 
sengers. This  aerolite  is  of  the  value  of  $101, 
and  this  fact,  if  no  other,  would  remove  it 
from  uses  where  other  and  much  less  valua- 
ble materials  would  answer  an  equally  good 
purpose,  and  place  it  in  the  sphere  of  its 
greater  usefulness. 

The  rule  is  cited,  with  cases  for  its  support, 
that  the  finder  of  lost  articles,  even  where 
they  are  found  on  the  property,  in  the  build- 
ing, or  with  the  personal  effects  of  third  per- 
sons, is  the  owner  thereof  against  all  the 
world  except  the  true  owner.  The  eoiTect- 
ness  of  the  rale  may  be  conceded,  but  its  ap- 
plication to  the  case  at  bar  is  very  doubtful. 
The  subject  of  this  controversy  was  never 
lost  or  abandoned.  Whence  it  came  is  not 
known,  but,  under  the  natural  law  of  its 
government,  it  became  a  part  of  this  earth, 
and,  we  think,  should  be  treated  as  such.  It 
is  said  by  appellant  that  tliis  case  is  unique; 
that  no  exact  precedent  can  be  found;  and 
that  the  conclusion  must  be  based  largely 
upon  new  considerations.  No  similar  ques- 
tion has,  to  our  knowledge,  been  determined 
in  a  court  of  last  resort.  In  the  American 
and  English  Encyclopedia  of  Law  (volume  15, 
p.  388)  is  the  following  language:  "An  aero- 
lite is  the  property  of  the  owner  of  the  fee 
upon  which  it  falls.  Hence  a  pedestrian  on 
the  highway,  who  is  first  to  discover  such  a 
stone,  is  not  the  oAvner  of  it;  the  highway 
being  a  mere  easement  for  travel."  It  cites 
the  case  of  Maas  v.  Amana  Soc,  16  Alb.  Law 
J.  76.  and  13  Ir.  Law  T.  381.  each  of  which 
periodicals  contains  an  editorial  notice  of 
such  a  case  having  been  decided  in  Illinois, 
but  no  reported  case  is  to  be  found.  Ander- 
son's Law  Dictionary  states  the  same  rule 
of  law,  with  the  same  references,  under  the 
subject  of  "Accretions."  In  20  Alb.  Law  J. 
299,  is  a  letter  to  the  editor  from  a  corres- 
pondent, calling  attention  to  a  case  determin- 
ed in  France,  where  an  aerolite  found  by  a 


MINERALS. 


peasant  was  held  not  to  be  the  property  of  the 
"proprietor  of  the  field,"  but  that  of  the  find- 
er. These  references  are  entitled,  of  course, 
to  slight,  if  any,  consideration;  the  informa- 
tion as  to  them  being  too  meager  to  indicate 
the  trend  of  legal  thought.  Our  conclusions 
I  re  announced  with  some  doubts  as  to  their 
correctness,  but  they  arise  not  so  much 
from  the  application  of  known  rules  of  law 
to  proper  facts  as  from  the  absence  of  defined 


rules  for  these  particular  cases.  The  interest 
manifested  has  induced  us  to  give  the  case 
careful  thought.  Our  conclusions  seem  to  us 
nearest  analogous  to  the  generally  accepted 
rules  of  law  bearing  on  kindred  questions,  and 
to  subserve  the  ends  of  substantial  justice. 
The  question  we  have  discussed  is  controlling 
in  the  case,  and  we  need  not  consider  others. 
The  judgment  of  the  district  court  is  af- 
firmed. 


WHAT  IS  REAL  PROPERTY. 


KINGSLEY  V.  HOLBROOK.i 

(45  N.  H.  313.) 

Supreme  Court  of  New  Hampshire.     Cheshire. 
July,  1864. 

Wheeler  &  Faulkner,  for  plaintiff.  Mr.  Lane, 
for  defendant. 

SARGENT,  J.  In  Massachusetts  and  Maine 
and  some  other  states,  the  courts  have  held,  as 
stated  in  1  Greenl.  Ev.  §  271,  and  note,  that  a 
sale  of  trees  growing  upon  land  is  not  a  sale  of 
real  estate,  unless  it  is  contemplated  that  they 
shall  remain  so  as  to  receive  profit  and  growth 
from  the  growing  surface  of  the  land;  unless 
the  vendee  was  to  have  some  beneficial  use  of 
the  land  in  connection  with  the  trees.  Where 
such  is  the  case,  then  a  sale  of  standing  trees 
is  a  sale  of  an  interest  in  land,  otherwise  not. 
The  authorities  cited  in  the  plaintiff's  brief  are 
in  favor  of  the  same  view, 

This  doctrine  had  its  origin,  as  it  would  seem, 
from  1  Ld.  Raym.  182,  where  Treby,  C.  J.,  re- 
ported to  the  other  judges  that  the  question  had 
arisen  before  him  at  nisi  prius,  whether  a  sale 
of  timber,  growing  upon  land,  ought  to  be  in 
writing  by  the  statute  of  frauds,  or  might  be  by 
parol;  and  that  he  had  ruled  that  it  might  be 
by  parol,  because  it  is  but  a  bare  chattel;  and 
it  is  said  that  to  this  opinion  Powell,  J.,  agreed. 
Since  then  the  decisions  have  been  very  con- 
flicting both  in  England  and  in  this  country. 
Many  decisions  in  regard  to  growing  crops  are 
quoted  as  bearing  upon  the  question  as  to 
whether  growing  trees  are  to  be  considered  per- 
sonal property,  or  an  interest  in  land.  These 
decisions  are  no  less  conflicting,  however,  and 
aid  us  very  little  in  establishing  any  general 
rule  based  upon  principle. 

But  we  find  this  distinction  noted  in  Dunne  v. 
Ferguson,  cited  in  Stephens,  N.  P.,  1971,  from  ] 
Hayes,  542.  The  case  was  trover  for  turnips. 
In  October,  1830,  the  defendant  sold  to  the 
plaintiff  a  crop  of  turniijs  which  he  had  then 
recently  sown,  for  a  sum  less  than  ten  pounds. 
During  the  winter  following  and  while  the  tur- 
nips were  still  in  the  ground,  the  defendant  sev- 
•?red  and  carried  away  considerable  quantities 
of  them  which  he  converted  to  his  own  use.  No 
note  in  writing  was  made  of  the  bargain.  It 
was  contended  for  the  defendant,  that  trover 
did  not  lie  for  things  annexed  to  the  freehold, 
and  that  the  contract  was  of  no  validity  for 
want  of  a  note  or  memorandum  in  writing,  pur- 
suant to  the  statute  of  frauds. 

In  deciding  the  case  Joy,  Chief  Baron  (Barons 
Smith,  Pennefeather,  and  Foster  concurring), 
says:  "The  general  question  for  our  decision  is, 
whether  there  has  been  a  contract  for  an  in- 
terest concerning  lands  within  the  second  sec- 
tion of  the  statute  of  frauds;  or  whether  it 
merely  concerned  goods  and  chattels;  and  that 
question  resolves  itself  into  another,  whether 
or  not  a  growing  crop  is  goods  and  chattels. 
In  one  case  it  has  been  held  that  a  contract  for 

1  Irrelevant  parts  omitted. 


potatoes  did  not  require  a  note  in  writing  be- 
cause the  potatoes  were  ripe;  and  in  another 
case  the  distinction  turned  upon  the  hand  that 
was  to  dig  them,  so  that  if  dug  by  A.  B.  they 
were  potatoes,  and  if  by  C.  D.,  they  were  an 
interest  in  lands.  Such  a  course  always  in- 
volves the  judge  in  perplexity  and  the  case  in 
obscurity.  Another  criterion  must  therefore 
be  had  recourse  to;  and,  fortunately,  the  later 
cases  have  rested  the  matter  on  a  more  ration- 
al and  solid  foundation.  At  common  law  grow- 
ing crops  were  uniformly  held  to  be  goods, 
and  they  were  subject  to  all  the  leading  conse- 
quences of  being  goods,  as  seizure  in  execu- 
tion, &c.  The  statute  of  frauds  takes  things 
as  it  finds  them,  and  provides  for  land  and 
goods  according  as  they  were  so  esteemed  be- 
fore its  enactment.  In  this  way  the  question 
may  be  satisfactorily  decided.  If  before  the 
statute  a  growing  crop  has  been  held  to  be 
an  interest  in  lands,  it  would  come  within  the 
second  section  of  the  act,  but  if  it  were  only 
goods  and  chattels,  then  it  came  within  the 
thirteenth  section.  *  *  *  And,  as  we  think 
that  growing  crops  have  all  the  consequences 
of  chattels,  and  are,  like  them,  subject  to  be 
taken  in  execution,  we  must  rule  the  points 
saved  for  the  plaintiff." 

Growing  annual  crops  for  many  purposes 
are,  and  always  have  been,  considered  chattels. 
They  go  to  the  executor  upon  the  death  of  the 
owner  of  the  land,  and  not  to  the  heir,  and 
they  may  be  levied  on  and  sold  upon  execution 
like  other  personal  chattels.  And  this  being 
the  case  when  the  statute  of  frauds  was  enact- 
ed, they  continued  to  be  so  treated  and  may 
properly  be  so  now.  But  the  word  "land"  is 
a  comprehensive  term,  including  standing  ti-ees, 
buildings,  fences,  stones,  and  waters,  as  well 
as  the  earth  we  stand  on,  and  all  pass  under 
the  general  description  of  land  in  a  deed. 
Standing  trees  must  be  regarded  as  part  and 
parcel  of  the  land  in  which  they  are  rooted 
and  from  which  they  draw  their  support,  and, 
upon  the  death  of  the  ancestor,  they  pass  to 
the  heir,  as  a  part  of  the  inheritance,  and  not 
to  the  executor,  as  emblements,  or  as  chat- 
tels. Neither  can  they  be  levied  upon  and 
sold  on  execution,  as  chattels,  while  standing. 
Thi^  being  the  case  when  the  statute  of  frauds 
was  passed,  it  has  since  then  been  properly 
held,  we  think,  that  a  saJe  of  growing  trees, 
with  a  right  at  any  future  time,  whether  fixed 
or  indefinite,  to  enter  upon  the  land  and  re- 
move them,  does  convey  an  interest  in  the 
land.  It  has  been  so  held  in  this  state  (Put- 
ney V.  Day,  6  N.  H.  430;  Olmstead  v.  Niles, 
7  N.  H.  522),  and  more  recently  in  other  states 
(Green  v.  Armstrong,  1  Denio,  550;  Warren 
V.  Leland,  2  Barb.  614;  Pierpont  v.  Barnard, 
5  Barb.  364;  Dubois  v.  Kelley,  10  Barb.  496; 
Buck  V.  Pickwell,  27  Vt.  157;  Yeakle  v,  Jacob, 
33  Pa.  St.  376);  also  in  England  (Scoi-ell  v. 
Boxall,  1  Younge  &  J.  396;  Teal  v.  Auty,  2 
Brod.  &  B,  99). 

I  think,  therefore,  that,  upon  the  weight  of 
authority  and  upon  reason,  the  doctrine  early 


TREES  AND  CROPS. 


established  in  this  state,  that  a  sale  of  growing 
tinaber  is  ordinarily  a  sale  of  an  interest  in 
land,  is  sound  and  ought  to  be  sustained.  Our 
statute,  providing  for  the  sale  of  timber  or 
wood  growing  or  standing  on  any  land,  sepa- 
rate from  the  land,  by  an  administrator  under 
a  license  from  the  judge  of  probate,  also  de- 
clares that  such  timber  or  wood  shall  be  deem- 
fd  to  be  real  estate.     Rev.  St.  c.  164,  §  6. 

Let  us  examine  the  deed  in  this  case  and  see 
if  it  is  sufficient  to  convey  an  interest  in  land. 
Under  the  law  of  1791,  in  relation  to  convey- 
ances, it  was  held,  that,  although  a  sale  of  tim- 
ber to  be  removed  in  a  certain  time  conveyed  an 
interest  in  land,  so  that  the  conveyance  must 
be  in  writing,  yet  it  need  not  be  by  deed.  Put- 
ney T.  Day,  6  N.  H.  430;  French  v.  French, 
3  N.  H.  234;  Pritchard  v.  Brown,  4  N.  H.  397; 
Olmstead  v.  Niles,  7  N.  H.  522.  In  the  last 
case  cited,  Parker,  J.,  says:  "Whether  the 
statute  of  1829,  which  repealed  the  act  of  1791, 
has  made  any  alteration  in  this  respect,  is  a 
question  which  does  not  arise  in  this  case." 

But  that  question  soon  after  arose,  and  it  was 
held,  that,  by  the  law  of  1829,  no  conveyance 
of  any  interest  whatever  in  real  estate  could 
be  made,  except  by  deed  duly  signed,  sealed, 
and  witnessed  by  two  witnesses;  that,  without 
all  these  requisites,  the  deed,  or  writing,  con- 
veyed absolutely  nothing  to  any  person;  and 
that  it  conveyed  nothing  as  against  anybody 
but  the  grantor  and  his  heirs,  unless  it  were 
also  acknowledged  and  recorded.  Stone  v.  Ash- 
ley, 13  N,  H.  38;  Underwood  v.  Campbell,  14 
N.  H.  393.  In  the  last  case  cited  it  is  held, 
that,  under  the  statute  of  1791,  a  seal  is  es- 
sential in  order  that  an  instrument  may  oper- 
ate as  a  conveyance  under  the  statute  of  uses 
(27  Hen.  VIII.  c.  10),  which  has  been  adopted 
in  this  state;  and  that  a  seal  is  also  necessary 
that  the  writing  may  operate  as  a  conveyance 
by  way  of  bargain  and  sale  under  the  same 
statute  of  1791. 

The  deed  in  this  case  is  sufficient  under  the 
statute  of  frauds  to  convey  an  interest  in  land, 
for  all  that  statute  requires  is  that  the  convey- 
ance be  in  writing.  This  deed  is  also  sufficient 
under  the  statute  of  1791,  as  interpreted  in 
Underwood  v.  Campbell,  supra,  because  it  is 
sealed.  But  it  would  be  void  under  the  stat- 
ute of  1829,  according  to  the  interpretation  of 
Stone  V.  Ashley,  supra,  because  not  witnessed 
by  two  witnesses,  for  this  deed  is  not  witnessed 
at  all. 

Does  the  law  of  the  Revised  Statutes  change 
the  law  of  1829  in  this  respect?  The  law  of 
1829  enacted  that  no  deed  of  bargain  and  sale, 
&c.,  should  be  valid  unless  executed  in  manner 
aforesaid,  which  was  by  being  signed,  sealed, 
and  witnessed  by  two  witnesses.  Laws  N.  H. 
1830,  p.  533.  The  Revised  Statutes  (chapter 
130,  §  3)  provide  that  every  deed  or  other  con- 
veyance of  real  estate  shall  be  signed  and  sealed 
by  the  party  granting  the  same,  attested  by  two 
or  more  witnesses,  acknowledged,  «&c.,  and  re- 
corded, &c.,  and  section  4  provides  that  no  deed 
of  bargain  and  sale,  mortgage  or  other  convey- 


ance of  any  real  estate,  or  any  lease,  &c.,  shall 
be  valid  to  hold  the  same  against  any  person 
but  the  grantor  and  his  heirs,  unless  such  deed 
or  lease  be  attested,  acknowledged  and  record- 
ed as  aforesaid.  It  will  be  seen  that  the  only 
change  contemplated  in  the  Revised  Statutes 
was,  that  a  deed  not  attested  by  two  wit- 
nesses might  be  good  as  against  the  grantor 
and  his  heirs,  whereas  by  the  statute  of  1829, 
it  was  expressly  provided  that  it  must  be  thus 
attested  in  order  to  be  good  against  anybody. 
As  the  law  now  is,  the  conveyance  will  not  be 
good,  unless  signed  and  sealed,  to  convey  -any- 
thing to  anybody,  but  it  may  be  good  as  against 
the  grantor  and  his  heirs  without  being  wit- 
nessed, acknowledged,  or  recorded.  Hastings 
V.  Cutler,  24  N.  H.  481.  This  deed  from  the 
Holbrooks  to  Conant  was  therefore  sufficient, 
under  the  Revised  Statutes,  being  signed  and 
sealed,  as  against  the  grantor  and  his  heirs, 
so  that  the  standing  timber  which  constituted 
an  interest  in  land  passed  by  this  deed  to  Co- 
nant. 

The  next  question  is,  was  the  written  agree- 
ment or  defeasance  which  was  made  at  the 
same  time  with  the  deed  properly  admitted? 
Our  statute  (Rev.  St.  c.  131,  §  2)  provides  that 
"no  conveyance  in  writing  of  any  lands  shall 
be  defeated,  nor  any  estate  encumbered  by  any 
agreement,  unless  it  is  inserted  in  the  condi- 
tion of  the  conveyance-  and  made  part  thereof, 
stating  the  sum  of  money  to  be  secured,  or 
other  thing  to  be  performed."  The  question 
might  perhaps  arise,  whether  this  does  not  re- 
fer to  mortgages  only.  But  we  think  it  is  not 
thus  limited.  In  the  original  law  as  passed 
in  1829  (Laws  N.  H.  1830,  p.  488).  it  was 
provided  that  no  title,  or  estate,  &c.,  in  any 
lands,  &c.,  should  be  "defeated  or  encumbered 
by  any  agreement  whatever,  unless  such  agree- 
ment, or  writing  of  defeasance,  shall  be  insert- 
ed in  the  condition  of  said  conveyance,  and  be- 
come part  thereof,  stating  the  sum,  &e.,  to  be 
secured,  or  the  other  tiling  or  things  to  be  per- 
formed." There  was  evidently  no  intention  to 
change  this  statute  in  the  revision,  and  its 
terms  are  clearly  broad  enough  in  the  original 
act,  and  must  have  been  intended  to  cover  a 
case  like  this. 

The  written  agreement,  or  defeasance,  should 
not  have  been  admitted,  and,  of  course,  the 
other  evidence  in  regard  to  the  extension  of  the 
time  of  getting  off  the  timber  was  immaterial. 
The  result  is  that  the  deed  conveyed  the  tim- 
ber absolutely,  and  this  accompanying  paper 
was  a  contract  upon  which  Conant  might  have 
been  liable  to  the  Holbrooks,  if  he  did  not 
perform  its  conditions,  and  that  agreement 
might  be  modified  by  parol.  If  there  had  been 
no  modification  of  that  contract,  then  Conant 
was  to  forfeit  all  the  timber  he  did  not  get  off 
in  three  years,  and  if  he  did  not  abide  by  that 
contract  he  would  be  liable  in  damages  for  a 
breach  of  it.  But  if  it  was  modified  and  the 
time  extended,  then  he  might  not  be  liable. 
But  the  deed  conveyed  the  timber  to  Conant 
absolutely. 


8 


WHAT  IS  REAL  PROPERTY. 


If  the  parties  here  intended  to  make  a  condi- 
tional deed,  the  condition  should  have  appeared 
in  the  deed,  and  then  the  title  or  interest  would 
have  been  held  subject  to  that  condition,  as  in 
any  other  case  of  a  conditional  deed. 

This  vpriting  was  also  improperly  admitted 
upon  another  ground.  Since  we  hold  that  the 
property  conveyed  was  an  interest  in  land, 
which  can  only  be  conveyed  by  an  instrument 
under  seal,  this  writing,  in  order  to  have  op- 


erated as  a  defeasance,  must  have  been  also 
under  seal,  which  is  not  the  fact;  so  that,  inde- 
pendent of  our  statutes,  the  writing  was  not 
admissible  in  evidence.  Lund  v.  Lund,  1  N. 
H.  41;  French  v.  Sturdivant,  8  Greenl.  246; 
Bickford  v.  Daniels,  2  N.  H,  71;  Runlet  v. 
Otis,  Id.  167;    Wendell  v.  Bank,  9  N.  H.  404, 

419. 

*♦♦••• 

Judgment  on  the  verdict. 


TREES  AXD  CROPS. 


9 


CARNEY   v..  MOSHER    et    al. 

(56  N.  W.  935,  97  Mich.  55i.) 

Supreme   Court  of   Michigan.    Nov.   24,    1893. 

Error  lo  circuit  court,  Hillsdale  county;  Vic- 
tor H.  Lane,  Judge. 

Action  of  trover  by  Darvpin  H.  Carney 
against  Orrin  B.  Mosher,  Thomas  J.  Lowry, 
Lucieu  Walworth,  and  Henry  S.  Walworth, 
for  the  conversion  of  certain  wheat.  There 
was  a  judgment  entered  on  the  verdict  of 
a  jury  directed  by  the  court  in  favor  of  de- 
fendants, and  plaintiff  brings  error.  Af- 
firmed. 

Geo.  A.  Knickerbocker  and  Wm.  C.  Chad- 
wick,  for  appellant.  C.  A.  Shepard  and  St. 
John  &  Lyon,  for  appellees. 

MONTGOMERY,  J.  The  plaintiff  brought 
trover  for  wheat  grown  upon  land  owned 
by  defendant  Orrin  B.  Moslier,  The  wheat 
was  sown  by  Alvin  L.  Mosher  while  occu- 
pying the  land  as  the  tenant  of  Orrin  B.  The 
wheat  was  harvested  by  defendant  Mosher, 
and  sold  to  defendant  Heniy  S.  Walworth, 
who,  it  is  claimed,  had  notice  of  plaintiff's 
rights.  Prior  to  the  spring  of  1890,  Alvin 
L.  Mosher  had  occupied  the  land  under  a 
written  lease,  and  in  the  spring  of  that  year 
renewed  his  lease  for  one  year  by  oral  agree- 
ment. There  had  been  a  previous  lease, 
and,  as  the  testimony  of  plaintiff  shows,  on 
the  occasion  of  the  present  letting,  Alvin  re- 
fused to  pay  the  rent  previously  reserved, 
imless  he  should  have  the  privilege  of  put- 
ting the  land  all  into  wheat,  and  it  was 
agreed  that  he  might  do  so.  He  proceed- 
ed to  sow  the  land  to  wheat,  and  in  January, 
1891,  sold  the  growing  crop  to  plaintiff.  In 
the  spring,  Alvin  sm'rendered  possession  to 
OiTin  B.,  who  proceeded  to  reap  the  crop, 
after  notice  of  plaintiff's  purchase.  The  cir- 
cuit judge  directed  a  verdict  for  defendants 
on  the  ground  that  the  lease  was  oral,  and 
that  the  implied  provision  that  the  lessee 
should  have  the  right  to  reap  the  crop  of 
wheat  was  void,  under  the  statute  of  frauds. 
The  defendants  contend  that  this  holding 
should  be  sustained;  and,  further,  as  it  ap- 
pears that  the  rent  was  not  paid  during  the 
year,  nor  since,  that  the  lessee  had  no  right 
to  the  crop,  and  that  a  purchaser  would  have 
no  greater  right  than  he;  and,  further,  that 
if  it  be  conceded  that  the  purchaser  of  the 
<!rop  of  a  tenant  would  not,  in  general,  be  af- 
fected by  a  subsequent  default  of  the  ten- 
ant, the  present  case  is  an  exception  to  the 
rule,  for  the  reason,  as  it  is  contended,  that 
the  transfer  from  Alvin  Mosher  to  plaintiff 
was  for  the  purpose  of  defrauding  the  de- 
fendant Orrin  B.  out  of  the  rent.  It  is,  how- 
ever, a  sufficient  answer  to  this  last  conten- 
tion that  the  fraud  is  not  admitted,  nor  to 
be  deduced  as  a  legal  cottsequence  from  con- 
ceded facts.  It  would  therefore  be  a  ques- 
tion for  the  jury,  by  the  express  terms  of 
the  statute.     Section  6206,  How.  St, 


If  it  be  assumed  that  tlie  tenant  was  in 
possession  by  right,  and  under  a  lease  which 
gave  him  the  right  to  reap  the  crop,  as  well 
as  to  sow,   it  follows  that  inasmuch  as  he 
sold  the  crop  before  any  default  on  his  part, 
so  far  as  appears,  and  certainly  before  for- 
feiture,  the  purchaser  from  him  obt;iined  a 
title    which    could    not    be   defeated    by    the 
lessee's  subsequent  default.     This  is  the  rule 
estal>lished   in   this   state  by   Nye   v.   Patter- 
son, 35  Mich.  413,  and  Miller  v.  Havens.  51 
Mich.   482,   16   N.   W.    Rep.    865.     See,   also. 
Dayton   v.    Vandoozer,    39   Mich.    749.      The 
question  for  our  determination,  therefore,  is 
the  one  upon   which   the   case   was   di-cided 
below,  namely,   did    the  parol  lea.se  for  one 
year,    with    the    agreement   that    the    ti-nant 
might  sow   the  land   to  wheat,   give  him   a 
right    to  enter    after    the   expiration   of    his 
lease,   and   reap  the  crop?     On  the  part  of 
the  defendants,  it  is  contended  that  the  riglit 
claimed   is   in   the  nature   of  an  interest   in 
land,  and  that  to  sustain  the  right  to   reap 
the  crop  would  be,  in  effect,  extending  the 
lease  into  the  second  year,  and  that  .said  con- 
tract is  therefore  void,  under  the  statute  of 
frauds.    On  the  other  liand,   it  is  contended 
that  the  lease   terminated,   according  to   its 
terms,  at  the  end  of  one  year,  and  that  the 
right  to  enter  in  and  reap  the  crop  is   one 
growing  out  of  the   nature   of  the  previou.s 
lease,  which  has  expired.     It  is  verj-  evident 
that,   whatever  the  right  to  enter  and  reap 
the  crop  be  called,  it  was  a  right  which  could 
not  be  exercised  within  one  year.     We  think 
it  is  equally  evident  that  it  was  an  interest 
in  land.     The  exclusive  use  of  the  land  was 
required  during  three  months  after  the  end 
of  a  year  from  the  letting,  before  the  crop 
would  ripen.     That  this  was  a  burden  upon 
the  estate  in  the  land  is  too  plain  for  argu- 
ment.    It  was  held  to  be  an  interest  in  the 
land  in  Reeder  v.  Say  re,  70  N.  Y.  183.    In  the 
present  case,  the  lessee  was  in  possession  at 
the  time  of  entering  into  the  contract,  and 
continued  in  possession  vmder  the  void  lease. 
This  constituted  him  a  tenant  at  will.  un;li>r 
our  holdings.     See  Huyser  v.  Chase.  V\  Mich. 
98.     The  tenancy  could  be  terminated  by  ei- 
ther party  on  three  months'  notice  to  quit. 
The  tenant  did  not  wait  for  this,  but  left  the 
premises  in  January  or  Febru:iry.  1891.     He 
paid   no   rent     The    owner    thereupon    took 
possession,  as  he  had  a  riglit  to  do.  and  as 
he  could,  but  for  the  lessee's  peaceable  sur- 
render,  have  done  by  a  no' ice  to  quit.     If 
it   be  suggested   that   treating   the   lease   as 
void,  under  the  statute  of  frauds,   the   ten- 
ant should,  because  of  his  previous  relations, 
be  treated  as  a  tenant  from  year  to  year,  he 
stands  in  no  better  situation,   for   the  year 
would    be    terminatixl,    under    such    holding, 
March  31,  ISOl,  giving  the  owner  the  right 
to    possession    tliereafter.    and    the    right    to 
reap  the  crop.     The  judgment  will  be  atfirm- 
ed,  with  costs.    The  other  iustices  coucuirod. 


10 


WHAT  IS  REAL  PROPERTY. 


TRUSTEES   OF  SCHOOLS  et  al.   v. 
SCHROLL   et   al. 

(12  N.  E.  243,  120  111.  509.) 

Supreme  Court  of  Illinois.     May  12,  1887. 

Appeal  from   circuit  court,   Morgan   county. 

Ejectment  by  trustees  of  schools  of  township 
16,  range  13,  to  recover  that  part  of  section 
IQ,  township  16,  range  13  W.,  of  third  prin- 
cipal meridian,  in  Morgan  county,  Illinois,  lying 
east  of  lots  1,  2,  and  3,  and  west  of  lots  4  to 
13,  in  said  section.  The  lands  in  controversy 
are,  in  fact,  part  of  the  bed  of  a  sheet  of  water 
known  as  "Meridosia  Lake."  Judgment  for 
defendants.     Plaintiffs  appeal. 

Gallon  &  Thompson,  for  appellants,  trustees 
of  schools.  Morrison  &  Whitlock,  for  appel- 
lees, 

SHOPE,  J.  Fractional  section  16  was,  by 
the  United  States,  "granted  to  the  state,  for 
the  use  of  the  inhabitants  of  such  township,  for 
the  use  of  schools."  Enabling  Act  of  Con- 
gress, April  18,  1818  (3  Stat.  428);  Organic 
Laws  111.  (1  Gross'  St.  19).  And  this  ena- 
bling act  was  formally  accepted  by  an  ordi- 
nance of  the  constitutional  convention  of  Au- 
gust 26,  1818.  Laws  111.  1819.  Append.  21; 
Organic  Laws  111.  (1  Gross'  St.  20).  The  ena- 
bling act  and  ordinance  constituted,  as  this 
court  held  in  Bradley  v.  Case,  3  Scam.  585, 
a  solemn  compact  between  the  United  States 
and  this  state,  whereby  the  state  of  Illinois 
became  the  purchaser  of  the  school  section  for 
a  valuable  consideration,  with  full  power  to  sell 
or  lease  the  same  for  the  use  of  schools,  as 
the  state  might  provide,  and  think  most  bene- 
ficial to  the  inhabitants  of  the  respective  town- 
ships. 

Sections  16,  m  the  several  townships  in  the 
state,  having  been  granted  and  accepted  as 
above  stated,  were  not  public  lands  within 
the  act  of  congress  of  March  30,  1822  (3  Stat. 
659),  authorizing  the  state  "to  survey  and 
mark,  through  the  public  lands  of  the  United 
States,  the  route  of  the  canal  connecting  the 
Illinois  river  with  the  southern  bend  of  Lake 
Michigan,"  (Trustees  v.  Haven,  5  Gilm.  548); 
and  for  the  like  reason  we  must  hold  that  they 
were  not  "swamp  and  overflowed  lands,  made 
unfit  thereby  for  cultivation,"  remaining  "un- 
sold at  the  passage  of"  the  act  of  congress  of 
September  28.  1850  (9  Stat.  519) ;  being  an  act 
"to  enable  the  state  of  Arkansas  and  other 
states  to  reclaim  the  swamp  lands  within  their 
limits."  After  the  grant  in  1818,  they  ceased 
to  be  public  lands  of  the  United  States,  nor 
could  they  after  that  time  be  regarded  as  un- 
sold lands,  and  so  they  were  unaffected  by  the 
swamp-land   act. 

When,  therefore,  the  defendants  in  this  case 
offered  in  evidence  the  deed  of  the  county  clerk 
of  Morgan  county,  purporting  to  have  been 
made  by  order  of  the  county  board  of  that 
county,  on  the  authority  of  the  laws  of  this 
state  relating  to  swamp  and  overflowed  lands, 
and  to  convey  parts  of  this  school  section,  the 


ofEer  should  have  been  denied,  and  it  was  error 
in  the  circuit  court  not  to  have  sustained  the 
plaintiff's  objection.  And  this  is  so,  independ- 
ent of  all  questions  as  to  whether  the  uncer- 
tain and  defective  description  of  the  premises 
said  to  be  part  of  this  particular  section  ren- 
dered the  deed  inoperative  to  that  extent,  or 
whether  the  premises  attempted  to  be  con- 
veyed formed  any  part  of  the  lands  sued  for 
or  bounded  thereon.  When,  therefore,  the  oflB- 
cial  character  of  appellants  was  admitted,  and 
the  enabling  act  and  ordinance  of  acceptance 
had  been  offered  in  evidence,  appellants'  right 
of  recovery  was  complete,  unless  it  could  be 
shown  that  the  state  had  parted  with  the  title 
to  the  lands  described  in  the  declaration,  or 
that  the  township  authorities  had  parted  with 
or  lost  their  right  of  possession  in  the  same. 

It  is  contended  by  appellees  that  Meridosia 
Lake  is  a  stream  of  water  some  five  miles  in 
length,  and  emptying  into  the  Illinois  river; 
and  that  appellants,  by  the  proper  ofiicers,  hav- 
ing platted  and  sold  the  land  to  the  margin  of 
and  bordering  on  the  stream,  the  grantees  took 
to  the  middle  of  the  stream;  that  the  title  of 
such  grantees  is  an  outstanding  title;  and  ap- 
pellees, being  shown  to  be  in  possession  under 
such  grantees,  rightfully  prevailed  in  the  cir- 
cuit court,  and  ought  to  prevail  here.  The 
books  and  authorities  are  all  agreed  that 
streams  and  bodies  of  water  within  the  ebb 
and  flow  of  the  tide  are,  at  common  law,  navi- 
gable; and  the  riparian  proprietor's  title  does 
not,  speaking  generally,  extend  beyond  the 
shore.  And  it  is  equally  well  settled  that 
grants  of  land,  bounded  on  streams  or  rivers 
above  tide-water,  carry  the  exclusive  right  and 
title  of  the  grantee  to  the  center  of  the  stream, 
usque  ad  filum  aqufe,  subject  to  the  easement 
of  navigation  in  streams  navigable  in  fact, 
unless  the  terms  of  the  grant  clearly  denote  the 
intention  to  stop  at  the  edge  or  margin  of  the 
stream.  3  Kent,  Comm.  427;  2  Hil.  Real 
Prop.  92;  Ang.  Water  Courses,  §  5;  Jones 
V.  Soulard,  24  How.  41;  Indiana  v.  Milk,  11 
Fed,  389;  Canal  Appraisers  v.  People,  17 
Wend.  590;  Child  v.  Starr,  4  Hill,  369;  Sea- 
man V.  Smith,  24  111.  521;  Rockwell  v.  Bald- 
win, .53  111.  19;  Braxon  v.  Bressler,  64  111. 
488;    Ice  Co.  v.  Shortall,  101  111.  46. 

But  an  entirely  different  rule  applies  when 
land  is  conveyed  bounded  along  or  upon  a 
natural  lake  or  pond.  In  such  case  the  grant 
extends  only  to  the  water's  edge.  Ang.  Water 
Courses,  §§  41,  42;  3  Kent,  Comm.  429,  note 
a;  citing  Bradley  v.  Rice,  13  Me.  201,  and 
Waterman  v.  Johnson,  13  Pick.  261.  See  War- 
ren V.  Chambers,  25  Ark.  120;  Indiana  v. 
Milk,  (Cir.  Ct.  U.  S.  D.  Ind.,  Gresham,  J.,) 
11  Fed.  389;  citing  Wheeler  v.  Spinola,  54  N. 
Y,  377;  Mansur  v.  Blake,  62  Me.  38;  State 
v.  Gilnianton,  9  N.  H.  461;  Paine  v.  Woods, 
108  Mass.  160;  Fletcher  v.  Phelps,  28  Vt. 
257;  Austin  v.  Railroad  Co.,  45  Vt.  215;  Boor- 
man  V.  Sunnuchs,  42  Wis.  233;  Delaplaine  v. 
Railway  Co.,  Id.  214;  Seaman  v.  Smith,  24 
111.  521.  See,  also.  Nelson  v.  Butterfield,  21 
Me.   229;    West   Roxbury    v.    Stoddard,   7   Al- 


RIPARIAN  PIlOPRIETOPtS. 


11 


len.  158;  Canal  Com'rs  v.  People,  5  Wend. 
423,  446;  Jakeway  v.  Barrett,  38  Vt.  31G; 
Primm  v.  Walker,  38  Mo.  99;  Wood  v.  Kelley, 
30  Me.  47. 

The  line  of  defense  adopted  by  appellees,  as 
before  stated,  presupposes  the  existence  of  cer- 
tain facts,  viz.:  (1)  That  appellants,  being 
owners  of  section  16,  granted  the  lands  abut- 
ting upon  the  water  spoken  of  as  Meridosia 
Lake,  within  such  section,  bounding  such  grants 
along  or  upon  the  margin  of  such  water;  (2) 
that  Meridosia  Lake  is  not,  at  the  common  law, 
navigable;  (3)  that  Meridosia  Lake,  and  with- 
in the  bounds  of  section  16,  is  a  stream  or  riv- 
er, as  contradistinguished  from  a  lake;  and 
(4)  that  the  terms  of  the  grant  do  not  clearly 
denote  an  intention  to  stop  at  the  edge  or 
margin  of  the  stream. 

if  the  record  iu  this  case  shows  the  exist- 
ence and  concurrence  of  all  these  facts,  this 
judgment,  upon  the  authority  of  the  cases  cit- 
ed, may  be  allirmed;  but,  if  it  shall  appear 
that  the  case  made  by  the  record  does  not 
show  the  existence  of  the  supposed  facts,  re- 
versal must  follow.  It  is  not  pretended  that 
Meridosia  Lake  is  a  stream  or  body  of  water 
navigable  at  common  law, — that  is  to  say,  it  is 
not  within  the  ebb  and  flow  of  the  tide;  and 
hence  the  rules  of  law  applicable  in  such  case 
cannot  be  invoked.  The  contention  is  that 
Meridosia  Lake  is  a  stream  of  water  about 
five  miles  long,  emptying  into  the  Illinois  river, 
with  its  southern  extremity  and  outlet  within 
the  bounds  of  section  16.  A  careful  examina- 
tion of  the  records  shows  that  this  lake  is  a 
natural  body  of  water,  five  or  six  miles  long, 
and  in  some  places  a  mile  in  width;  that  it  is 
fed  by  springs;  that  its  southern  extremity 
extends  into  section  16;  that  it  has  no  con- 
nection with  any  stream  of  water,  except  by 
a  slough  at  the  south  end,  and  near  the  south 
line  of  section  16;  that  the  body  of  the  lake, 
in  its  natural  state,  is  without  current;  but 
that  during  a  portion  of  the  year  a  current  of 
water  passes  from  the  lake,  through  the  slough 
referred  to,  into  the  Illinois  river,  which  flow, 
however,  is  stopped  in  the  summer.  The  rec- 
ord does  not  show  the  average  width  of  the 
lake,  the  average  depth  of  the  water  in  the 
lake  in  its  natural  state,  nor  whether  or  not  it 
is  in  fact  navigable;  nor  are  we  able  to  learn 
therefrom  the  length  and  width  of  the  slough, 
nor  the  depth  of  the  water  flowing  through  the 
same,  or  the  rapidity  of  the  flow  from  the  lake 
into  the  river  at  the  natural  stage  of  water  in 
the  lake.  All  we  can  know  of  this  outlet  we 
must  gather  from  the  plat  made  by  the  town- 
ship trustees  in  1846,  taken  in  connection  with 
the  fact  testified  to  by  witnesses,  that,  for  a 
portion  of  the  year,  some  water  from  a  land- 
locked natural  body  of  currentless  water,  five 
or  six  miles  long,  and  in  places  a  mile  in  width, 
flows  therethrough;  and  from  this  alone  we 
are  asked  to  find  and  hold  that  such  a  body  of 
water,  so  situated,  is  a  stream,  and  not  a  lake. 
.  This,  as  we  understand  the  law,  we  cannot  do. 

The  word  "stream"  has  a  well-defined  mean- 
ing, wholly  inconsistent  with  a  body  of  water 


at  rest.  It  implies  motion;  as,  to  issue  In  a 
stream;  to  flow  in  a  current.  Webst.  Diet. 
Indeed,  the  controlling  distinction  between  a 
stream  and  a  pond  or  lake  is  that  in  the  one 
case  the  water  has  a  natural  motion, — a  cur- 
rent,— while  in  the  other  the  water  is,  in  its 
natural  state,  substantially  at  rest.  And  this 
is  so,  independent  of  the  size  of  the  one  or  the 
other.  The  flowing  rivulet  of  but  a  few  inches 
in  width  is  a  stream  as  certainly  as  the  Mis- 
sissippi. And  when  lands  are  granted  by  the 
proprietor  of  both  land  and  stream,  bounding 
such  grant  upon  the  stream,  the  grantee  ac- 
quires right  and  title  to  the  thread  or  middle 
of.  the  stream.  This  right  is  grounded  upon 
the  presumption  that  the  grantor,  by  making 
the  stream  the  boundary,  intended  his  grantee 
to  take  to  the  middle  of  the  stream;  and  this 
presumption  will  prevail  until  a  contrary  in- 
tent is  made  to  appear.  Rockwell  v.  Baldwin, 
53  III.  19.  The  right  spoken  of  does  not  rest 
upon  the  principle  that,  when  a  grant  is  bound- 
ed on  a  stream,  the  bed  of  the  stream  to  the 
thread  or  middle  passes  as  incident  or  appur- 
tenant to  the  bordering  land;  for  the  bed  of 
the  stream  is  land,  though  covered  with  water, 
and  land  cannot  pass  as  appurtenant  to  land. 

As  is  said  in  Child  v.  Starr,  4  Hill,  369:  "A 
conveyance  of  one  acre  of  land  can  never  be 
made,  by  any  legal  construction,  to  carry  an- 
other acre  by  way  of  incident  or  appurtenance 
to  the  first."  The  riparian  proprietor,  claim- 
ing to  the  thread  or  middle  of  the  stream,  must 
show  the  bordering  water  to  be  a  stream,  and 
that  his  grant,  in  terms  or  legal  effect,  is 
bounded  upon  or  along  such  stream;  that  the 
stream  is  made  the  boundary;  and,  while  it 
is  obvious  that  a  currentless  body  of  water 
cannot  be  a  stream,  the  fact  of  some  current 
in  a  body  of  water  is  not  of  itself,  in  every 
instance,  suflicient  to  determine  its  character 
as  a  stream,  as  distinguished  from  a  pond  or 
lake.  The  presence  of  some  current  is  not 
enough  alone  to  work  an  essential  change  in 
so  essentially  different  things  as  a  stream  and 
a  lake;  for  a  current  from  a  higher  to  a  lower 
level  does  not  necessarily  make  that  a  stream 
or  river  which  would  otherwise  be  a  lake,  and 
the  swelling  out  of  a  stream  into  broad  water- 
sheets  does  not  necessarily  make  that  a  lake 
which  would  otherwise  be  a  river.  Ang.  Wa- 
ter Courses,  §  4.  We  are  therefore  constrain- 
ed to  hold  that  the  position,  size,  and  charac- 
ter of  this  body  of  water,  as  shown  by  this 
record,  fixes  its  character  as  a  lake,  and  not  a 
stream,  notwithstanding  some  part  of  its  water 
during  a  portion  of  the  year  may  flow  tlirough 
the   slough  into  the   Illinois   river. 

Another  fact,  the  existence  of  which  is  pre- 
supposed, is  that  the  proper  officers,  acting  un- 
der the  laws  of  the  state,  granted  the  land 
bordering  on  so  much  of  the  stream  called 
"Meridosia  Lake"  as  was  within  section  16, 
bounding  such  grants  on  the  stream.  The 
only  grants  shown  in  this  record  to  have  been 
made,  and  upon  which  this  contention  could 
be  based,  are  the  patents  issued  to  Edward 
Watson  and  Edward  Lusk.     Watson  took  un- 


12 


WHAT  IS  REAL  PROPERTY. 


der  his  patent  that  part  of  section  16  desig- 
nated on  the  plat  of  the  section  made  by  the 
trustees  as  lots  12  and  13,  containing  22  4-100 
acres  by  survey,  and  Lusk  took  under  his  pat- 
ent lots  3  to  11,  inclusive,  by  the  same  plat, 
containing  by  the  plat  88%  acres.  By  refer- 
ence, the  plat  of  the  section  made  by  the  trus- 
tees in  1846  became  a  part  of  the  conveyance, 
as  much  so  as  if  it  had  been  copied  into  the 
patent  deed.  Piper  v.  Connelly,  108  111.  646; 
Railroad  Co.  v.  Koelle,  104  111.  455.  And 
the  rule  of  law  is  that,  when  lands  are  pur- 
chased and  conveyed  in  accordance  with  a 
plat,  the  purchaser  will  be  restricted  to  the 
boundaries  as  shown  by  the  plat.  McCormick 
V.  Huse,  78  111.  363;  citing  McClintock  v.  Rog- 
ers, 11  111.  279.  The  patent  deeds  contain  no 
intimation  that  the  lots  conveyed  border  on  a 
lake  or  stream;  and  when  we  look  at  the  plat, 
as  we  must,  all  we  can  determine  is  the  shape 
and  area  of  the  several  lots.  No  data  is  given 
from  which  we  can  determine  the  width  or 
depth  of  any  lot,  nor  can  we  know  from  the 
plat  that  either  the  east  line  of  lot  3,  or  the 
west  line  of  lots  4  to  13,  inclusive,  as  shown 
on  the  plat,  are  in  fact  the  western  and  east- 
ern boundary  of  Meridosia  Lake.  It  may  be 
so  in  fact,  but  this  record  fails  to  show  it  to  be 
so;  while,  as  to  lots  1  and  2,  the  record  does 
not  show  that  they  were  at  any  time  sold  or 
conveyed,  or  the  title  vested  in  the  state  in  any 
way  divested.  We  therefore  hold  that  it  does 
not  appear  from  the  record  that  the  state,  for 
the  inhabitants  of  the  township,  granted  all 
the  lands  bordering  on  Meridosia  Lake,  and 
within  this  fractional  section  16,  nor  that  the 
grants,  to  the  extent  they  were  made,  were 
bounded  on  the  lake.  It  is  thus  seen  that  the 
essential  facts,  the  existence  of  which  is  pre- 
supposed as  a  basis  for  the  defense  interposed, 


are  not  shown  to  exist;  and  hence  the  defense 
based  on  the  right,  as  riparian  owners  on 
streams,  to  take  ad  filum  aquae,  cannot  be  in- 
voked, and  has  no  application  to  this  case. 
For  the  reasons  stated,  all  the  evidence  offered 
by  the  appellees  on  the  trial,  relating  to  the 
title,  ownership,  and  possession  of  the  lots 
shown  by  the  trustees'  plat,  should  have  been 
refused  as  immaterial,  and  its  reception,  over 
the  objection  of  appellants,  was  error. 

One  other  question  remains  to  be  considered, 
viz.,  appellees'  claim  that  they  are  in  possession 
"of  a  portion  of  water  known  as  'Meridosia 
Lake,'  claiming  title  to  it  by  possession  for 
more  than  20  years,  as  fishermen."  Appel- 
lants sue  for  a  body  of  land.  Some  part  of  the 
premises  described  in  the  declaration  must 
form  the  bed  of  that  part  of  Meridosia  Lake 
within  section  16,  but  what  part  is  lake  bed 
and  what  shore  we  cannot  determine  from 
this  record.  Appellees'  claim  of  title  by  pos- 
session is  not  of  land,  but  of  water.  But  if 
this  should  be  thought  hypercritical,  and  it  be 
assumed  that  appellees'  claim  is  of  20  years' 
adverse  possession  of  the  bed  of  the  lake  with- 
in the  section,  still  it  must  be  observed  that 
such  possession  of  land  as  here  claimed  is  a 
conclusion  of  law  arising  from  existing  facts. 
The  evidence  preserved  in  the  record  goes  no 
further  than  the  declaration  of  witnesses  that 
appellees,  and  those  under  whom  they  claim, 
had,  and  had  had,  exclusive  possession  for  that 
length  of  time.  But  how,  and  to  what  extent, 
— whether  the  lake,  or  any  part  of  it,  was 
inclosed  by  fences,  dams,  walls,  or  weirs, — 
and  how  this  adverse  dominion  was  manifest- 
ed, there  is  not  one  word  to  show.  The  claim, 
under  this  proof,  is  without  force  or  merit. 

The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  remanded. 


RIPARIAN  PROPRIETORS. 


13 


ILLINOIS  CENT.  R.  CO.  v.  STATE  OF  IL- 
LINOIS ot  al.  CITY  OF  CHICAGO  v.  ILLI- 
NOIS CENT.  R.  CO.  et  al.  STATE  OF 
ILLINOIS  V.  ILLINOIS  CENT.  R.  CO.  et  al. 

(13  Sup.  Ct.  110,  146  U.  S.  387.) 

Supreme   Court   of  the   United   States.     Dec.   5, 
1S!)2. 

Appeals  from  tlie  circuit  court  of  the  Unit- 
ed States  for  the  nortliern  district  of  Illinois. 
Modified  and  Hllirmed. 

J3.  F.  Ayers  and  Jolm  X.  Jewett,  for  Illi- 
nois CViil.  II.  Co.  John  S.  Miller  and  S.  S. 
Gregory,  for  tlie  City  of  Chicago.  George 
Hunt,  for  the  State  of  Illinois. 

Mr.  Justice  FIELD  delivered  the  opinion 
of  the  court. 

This  suit  was  commenced  on  the  1st  of 
INIarch,  18S3,  in  a  circuit  court  of  Illinois,  by 
an  infoiniation  or  bill  in  equity  hleti  by  the 
attoiney  general  of  tiie  state,  in  the  name  of 
its  people,  against  the  Illinois  Central  Kail- 
road  Company,  a  corpoiation  created  under 
its  laws,  and  against  the  city  of  Chicago. 
Tlie  United  States  were  also  named  as  a  party 
defendant,  but  they  never  appeared  in  the 
suit,  and  it  was  impossible  to  bring  them  in 
as  a  party  without  their  consent.  The  alleged 
grievances  arose  solely  from  the  acts  and 
claims  of  the  railroad  company,  but  the  city 
of  Chicago  was  made  a  defendant  because  of 
its  interest  in  the  subject  of  tlie  litigation. 
The  railroad  company  Hied  its  answer  in  the 
state  court  at  the  first  term  after  the  com- 
mencement of  the  suit,  and  upon  its  petition 
the  case  was  removed  to  the  circuit  court  of 
the  United  States  for  the  nortliern  district  of 
Illinois.  In  May  following  the  city  appeared 
to  the  suit  and  filed  its  answer,  admitting 
all  the  allegations  of  fact  in  tlie  bill.  A  sub- 
sequent motion  by  tlie  complainant  to  remand 
the  case  to  the  state  court  was  denied.  16 
Fed.  Rep.  881.  The  pleadings  were  after- 
wards altered  in  various  particulars.  An 
amended  information  or  bill  was  filed  by  the 
attorney  general,  and  the  city  filed  a  cross 
bill  for  aflirmative  relief  against  the  state 
and  the  co:iipany.  The  latter  appeared  to  the 
cross  bill,  and  answered  it,  as  did  the  attor- 
ney general  for  the  slate.  Each  party  has 
prosecuted  a  separate  appeal. 

Tlie  object  of  the  suit  is  to  obtain  a  judicial 
determination  of  the  title  of  certain  lands  on 
the  east  or  lake  front  of  the  city  of  Chicago, 
situated  between  the  Chicago  river  and  Six- 
teenth street,  wliich  have  been  reclaimed 
from  the  waters  of  the  lake,  and  are  occupied 
by  the  tracks,  depots,  warehouses,  piers,  and 
other  structures  used  by  the  railroad  company 
in  its  business,  and  also  of  the  title  claimed 
by  the  company  to  the  submerged  lands,  con- 
stituting the  bed  of  the  lake,  lying  east  of  its 
tracks,  within  the  corporate  limilsof  the  city, 
for  the  distance  of  a  mile,  and  between  the 
south  line  of  the  south  i)ier  near  Chicago 
river,  extended  eastwaidly,  and  a  line  ex- 
tended in  the  same  direction  from  the  south 
line  of  lot  21  near  the  company's  roundhouse 


and  machine  shops.  The  determination  of 
the  titl"  of  the  company  will  involve  a  con- 
sideration of  its  right  to  construct,  for  its 
own  business,  as  well  as  for  public  conven- 
ience, wharves,  piers,  and  docks  in  the  har- 
bor. 

We  agree  with  the  court  below  that,  to  a 
clear  understanding  of  the  numerous  ques- 
tions  presented  in  this  case,  it  was  necessary 
to  trace  the  history  of  the  title  to  the  several 
parcels  of  land  claimed  by  the  company;  and 
the  court,  in  its  elaborate  opinion,  (33  Fed. 
Rep.  730.)  for  that  purpose  referred  to  tlie 
legisliiion  of  the  United  States  and  of  the 
state,  and  to  ordinances  of  the  city  and  pro- 
ceedings thereunder,  and  stated,  with  great 
minuteness  of  detail,  every  material  [iiovi- 
sion  of  law  and  every  step  taken.  We  iiave 
with  great  care  gone  over  the  history  detailed, 
and  are  satisfied  with  its  entire  accuracy.  It 
would  therefore  serve  no  useful  purpose  to 
repeat  what  is,  in  our  opinion,  clearly  and 
fully  narrated.  In  what  we  may  say  of  the 
rights  of  the  railroad  company,  of  the  state, 
and  of  the  cit\',  remaining  after  the  le;:isla- 
tion  and  proceedin.  s  taken,  we  shall  assume 
the  correctness  of  that  history. 

The  state  of  Illinois  was  admitted  into  the 
Union  in  1818  on  an  equal  footing  with  the 
original  states,  in  all  respects.  Such  was 
one  of  the  comlitions  of  the  cession  from  Vir- 
ginia of  the  territory  northwest  of  the  Ohio 
river,  out  of  which  the  state  was  formed. 
But  the  equality  prescribed  would  have  ex- 
isted if  it  had  not  been  thus  stipulated. 
There  can  be  no  distinction  between  the  sev- 
eral states  of  the  Union  in  the  character  of 
the  jurisdiction,  sovereignty,  and  dominion 
which  they  may  possess  and  exercise  over 
persons  and  subjects  within  their  respective 
limits.  Tlie  boundaries  of  the  state  were 
prescril)ed  by  congress  and  accepted  by  the 
state  in  its  original  constitution.  They  are 
given  in  the  bill.  It  is  suthcient  for  our  pur- 
pose to  observe  that  they  include  within  their 
eastern  line  all  that  portion  of  Lake  Michi- 
gan lying  east  of  the  mainland  of  the  state 
and  the  middle  of  the  lake,  south  of  latitude 
42  degrees  and  30  minutes. 

It  is  the  settled  law  of  this  country  that 
the  ownersliip  of  and  dominion  and  sover- 
eignty over  lands  covered  by  tide  waters, 
within  the  limits  of  the  several  states,  beUing 
to  the  respective  states  within  which  they 
are  found,  with  the  consequent  riglit  to  use 
or  dispose  of  any  portion  thereof,  when  that 
can  be  done  without  substantial  impairment 
of  the  interest  of  the  public  in  the  waters, 
and  subject  always  to  the  i)aramouiit  right 
of  congress  to  control  their  navigation  so  far 
as  may  be  necessary  for  the  regulation  of 
commerce  with  foreign  nations  and  among 
the  states.  Tliis  doctrine  lias  been  often  an- 
nounced by  this  court,  and  is  not  questioned 
by  counsel  of  any  of  the  parties.  Pollard's 
Lessee  v.  Hagan,  3  How.  212;  Weber  v. 
Commissioners,  18  Wall.  57. 

The  same  doctrine  is  in  this  country  held 
to  be  applicable  to  lands  covered  by  fresh 


14 


WHAT  IS  REAL  PROPERTY. 


water  in  the  Great  Lakes,  over  winch  is  con- 
ducted an  extended  commerce  witli  different 
states  and  foreign  nations.  Tiiese  lakes  pos- 
sess all  the  general  characteristics  of  open 
seas,  except  in  the  fresliness  of  their  waters, 
and  in  the  absence  of  the  ebb  and  flow  of  the 
tide.  In  other  respects  they  are  inland  seas, 
and  there  is  no  reason  or  principle  for  the  as- 
sertion of  dominion  and  sovereignty  over  and 
ownersliip  by  the  state  of  lands  covered  by 
tide  waters  tliat  is  not  equally  applicable  to 
its  ownership  of  and  dominion  and  sover- 
eignty over  lands  covered  by  the  fresh  waters 
of  tliese  lakes.  At  one  time  the  existence  of 
tide  waters  was  deemed  essential  in  deter- 
mining the  admiralty  jurisdiction  of  courts 
in  England.  That  doctrine  is  now  repudiat- 
ed in  this  country  as  wholly  inapplicable  to 
our  condition.  In  England  the  ebb  and  flow 
of  the  tide  constitute  the  legal  test  of  the 
navigability  of  waters.  There  no  waters  are 
navigable  in  fact,  at  least  to  any  great  extent, 
which  are  not  subject  to  the  tide.  There, 
as  said  in  the  case  of  The  Genesee  Ciiief, 
12  How.  443,  455,  "'tide  water,'  and  '  naviga- 
ble water  '  are  synonymous  terms,  ami  '  tide 
water,'  with  a  few  small  and  unimportant  ex- 
ceptions, meant  nothing  more  than  public 
rivers,  as  contradistinguished  from  private 
ones;"  and  writers  on  the  subject  of  admiralty 
jurisdiction  "took  tlie  ebb  and  flow  of  the  tide 
SIS  the  test,  because  it  was  a  convenient  one, 
and  more  easily  determined  the  character  of 
the  river.  Hence  the  established  doctrine  in 
Euffland,  that  the  admiralty  jurisdiction  is 
coniined  to  the  ebb  and  flow  of  the  tide.  In 
oilier  words,  it  is  confined  to  public  naviga- 
ble waters." 

But  in  this  country  the  case  is  different. 
Some  of  our  rivers  are  navigable  for  great 
distances  above  the  flow  of  the  tide, — indeed, 
for  hundreds  of  miles, — by  the  largest  ves- 
sels used  in  commerce.  As  said  in  the  case 
cited:  "There  is  certainly  nothing  in  tlieebb 
and  flow  of  the  tide  that  makes  tiie  waters 
peculiarly  suitable  for  admiralty  jurisdiction, 
nor  anything  m  the  absence  of  a  tide  that 
renders  it  unfit.  If  it  is  a  public,  navigable 
water,  on  which  commerce  is  carried  on  be- 
tween different  states  or  nations,  the  reason 
for  the  jurisdiction  is  precisely  the  same,  and, 
if  a  distinction  is  made  on  that  account,  it  is 
merely  arbitrary,  without  any  foundation  in 
reason,  and,  indeed,  would  seem  to  be  incon- 
sistent with  it." 

The  Great  Lakes  are  not  in  any  apprecia- 
ble respect  affected  by  tlie  tide,  and  yet  on 
their  waters,  as  said  above,  aiaige  commerce 
is  carried  on,  exceeding  in  many  instances 
the  entire  commerce  of  states  on  the  borders 
of  the  sea.  When  the  reason  of  the  limita- 
tion of  admiralty  jurisdiction  in  England 
was  found  inapplicable  to  the  condition  of 
navigable  waters  in  this  country,  the  limita- 
tion and  all  its  incidents  were  discarded.  So 
also,  by  the  common  law,  the  doctrine  of  the 
dominion  over  and  ownership  by  the  crown 
of  lands  within  the  realm  under  tide  waters 
is  not  founded  upon  the  existence  of  the  tide 


over  tlie  lands,  but  upon  the  fact  that  the 
waters  are  navigable;  "tide  waters"  and 
"navigable  waters,"  as  already  said,  being 
used  as  synonymous  terms  in  England.  The 
public  being  interested  in  the  use  of  such 
waters,  the  possession  by  private  individuals 
of  lands  under  them  could  not  be  permitted 
except  by  license  of  the  crown,  which  could 
alone  exercise  such  dominion  over  the  wa- 
ters as  would  insure  freedom  in  their  use  so 
far  as  consistent  with  the  public  interest. 
The  doctrine  is  founded  upon  the  necessity 
of  preserving  to  the  public  the  use  of  naviga- 
ble waters  from  private  interruption  and 
encroachment, — a  reason  as  applicable  to 
navigable  fresh  waters  as  to  waters  moved 
by  the  tide.  We  hold,  therefore,  that  the 
same  doctrine  as  to  the  dominion  and  sover- 
eignty over  and  ownership  of  lands  under 
the  navigable  waters  of  the  Great  Lakes  ap- 
plies which  obtains  at  the  common  law  as  to 
the  dominion  and  sovereignty  over  and  own- 
ership of  lands  under  tide  waters  on  the  bor- 
ders of  tlie  sea,  and  that  the  lands  are  held 
by  the  same  right  in  the  one  case  as  in  the 
other,  and  subject  to  the  same  trusts  and 
limitations.  Upon  that  theory  we  shall  ex- 
amine how  far  such  dominion,  sovereignty, 
and  proprietary  right  have  been  encroached 
upon  by  the  railroad  company,  ami  how  far 
that  company  had  at  the  time  the  assent  of 
the  state  to  such  encroachment,  and  also  the 
validity  of  the  claim  which  the  company  as- 
serts, of  a  right  to  make  further  encroach- 
ments thereon  by  virtue  of  a  grant  from  the 
state  in  April,  1869. 

The  city  of  Chicago  is  situated  upon  the 
southwestern  shore  of  Lake  Michigan,  and 
includes,  with  other  territory,  fractional 
sections  10  and  15,  in  township  3l)  N.,  range 
14  E.  of  the  third  P.  M.,  bordering  on  the 
lake,  which  forms  their  eastern  boundary. 
For  a  long  time  after  the  orjzanization  of  the 
city,  its  harbor  was  the  Chicago  river,  a 
tsmall,  narrow  stream  opening  into  the  lake 
near  the  center  of  the  east  and  west  line  of 
section  10;  and  in  it  the  shipping  arriving 
from  otlier  ports  of  the  lake  and  navigable 
waters  was  moored  or  anchored,  and  along  it 
were  docks  and  wharves.  The  growth  of 
the  city  in  subsequent  years,  in  population, 
business,  and  commerce,  required  a  larger 
and  more  convenient  harbor,  and  the  United 
States,  in  view  of  such  expansion  and  growth, 
commenced  the  construction  of  a  system  of 
breakwaters  and  other  harbor  protections  in 
the  waters  of  the  lake  in  front  of  the  frac- 
tional sections  mentioned.  In  the  prosecu- 
tion of  this  work  there  was  constructed  a 
line  of  breakwaters  or  cribs  of  wood  and 
stone  covering  the  front  of  the  city  between 
the  Chicago  river  and  Twelfth  street,  with 
openings  in  the  piers  or  lines  of  cribs  for  the 
entrance  and  departure  of  vessels;  thus  in- 
closing a  large  part  o'  the  lake  for  the  uses 
of  ship[)ing  and  commerce,  and  creating  an 
outer  harbor  for  Chicago.  It  comprises  a 
space  about  one  mile  and  one  half  in  length 
from  north  to  south,  and  is  of  a  width  from 


EIPAItlAX  PROPRIETORS. 


15 


east  to  west  varying  from  1,000  to  4,000  feet. 
As  commerce  and  shipping  expand,  tlie  har- 
bor will  be  furllier  extended  towards  the 
south;  and,  as  alleged  by  the  amended  bill, 
it  is  expected  that  the  necessities  of  commerce 
will  soon  require  its  enlargement  so  as  to  in- 
clude a  great  part  of  the  entire  lake  front  of 
the  city.  It  is  stated,  and  not  denied,  that 
the  authorities  of  the  United  States  iiave  in 
a  general  way  indicated  a  plan  for  the  im- 
provement and  use  of  the  harbor  which  had 
been  inclosed  as  mentioned,  by  which  a  por- 
tion is  devoted  as  a  harbor  of  retuge,  where 
ships  may  ride  at  anciior  with  security  and 
within  protecting  walls,  and  anoiher  portion 
of  such  inclosnre,  nearer  the  shore  of  tlie 
lake,  may  be  devoted  to  wharves  and  piers, 
alongside  of  which  ships  may  load  and  un- 
load, and  upon  which  warehouses  may  be 
constructed  and  other  structures  erected  for 
the  convenience  of  lake  commerce. 

Tlie  case  proceeds  upon  the  theory  and  alle- 
gation that  the  defendant  the  Illinois  Cen- 
tral Railroad  Company  has,  without  lawful 
authority,  encroached,  and  continues  to  en- 
croach, upon  the  domain  of  the  state,  and 
its  original  ownership  and  control  of  the  wa- 
ters of  the  harbor  and  of  the  lands  tiiere- 
under,  upon  a  claim  of  rights  acquired  un- 
der a  grant  from  the  state  and  ordinance  of 
the  city  to  enter  the  city  and  appropriate 
land  and  water  200  feet  wide,  in  onler  to 
construct  a  track  for  a  railway  and  to  erect 
thereon  warehouses,  piers,  and  other  struc- 
tures in  front  of  the  city,  and  upon  a  claim  of 
riparian  rights  acquired  by  virtue  of  owner- 
ship of  lands  oriirinally  boideringon  the  lake 
in  front  of  the  city.  It  also  pri)ceeds  against 
llie  claim  asserted  by  the  railroad  company, 
of  a  grant  by  tlie  state  in  18G9  of  its  rii^ht 
and  title  to  the  submerged  lands  constituting 
tlie  bed  of  Lake  Michigan,  lying  east  of  the 
tracks  and  breakwater  of  the  company  for 
the  distance  of  one  mile,  and  between  the 
south  line  of  tlie  south  pier  extended  east- 
wardly  and  a  line  extended  in  the  same  di- 
rection from  the  south  line  of  lot  21  south  of 
and  near  the  machine  shops  and  roundhouse 
of  the  company,  and  of  a  right  thereby  to 
construct  at  its  pleasure,  in  the  harbor, 
wharves,  piers,  and  other  works  for  its  use. 

The  state  prays  a  decree  establishing  and 
confirming  its  title  to  the  bed  of  Lake  ^Michi- 
gan,  and  exclusive  rirht  to  develop  and  im- 
})rove  the  harbor  of  Chic:igo  by  the  construc- 
tion of  docks,  wharves,  piers,  and  other  im- 
provements, against  the  claim  of  the  railroad 
com[)any  that  it  has  an  absolute  title  to  such 
submerged  lands  by  the  act  of  18G9,  and  the 
right,  subject  oidy  to  the  j)araniount  author- 
ity of  the  United  States  in  the  regulation  of 
commerce,  to  fill  all  the  bed  of  the  lake  with- 
in the  limits  above  stated,  for  the  purpose  of 
its  business,  and  the  right,  by  the  construc- 
tion and  maintenance  of  wharves,  docks,  and 
piers,  to  improve  the  shore  of  the  lake  for 
the  promotion  generally  of  commerce  and 
navigation.  And  the  state,  insisting  that 
the  company  has,  without  right,  erected,  and 


proposes  to  continue  to  erect,  wharves  and 
piers  upon  its  domain,  asks  that  such  alhged 
unlawful  structures  may  be  ordered  to  be  re- 
moved, and  the  company  be  enjoined  from 
erecting  further  structures  of  any  kind. 

And  first  as  to  lands  in  the  harbor  of  Chi- 
cago i)Ossessed  and  used  by  the  railroad  com- 
pany under  the  act  of  congress  of  September 
20,  1850,  (9  St.  p.  4GG,  c.  61.)  and  the  ordi- 
nance of  the  city  of  June  14,  1852.  By  that 
^ict  congress  granted  to  the  state  of  Illinois  a 
right  of  way,  not  exceeding  100  feet  in  wiilth, 
on  each  side  of  its  length,  through  the  pub- 
lic lands,  for  tlie  construction  of  a  railroad 
from  the  southern  terminus  of  the  Illinois  & 
Michigan  Canal  to  a  point  at  or  near  the 
junction  of  the  Ohio  and  Mississippi  rivers, 
with  a  branch  to  Chicago,  and  another,  via 
the  town  of  Galena,  to  a  point  opposite  Du- 
buque, in  the  state  of  Iowa,  witii  liie  right  to 
take  the  necessary  materials  for  its  construc- 
tion; and  to  aid  in  the  construction  of  the 
railroad  and  branches,  by  the  same  act  it 
granted  to  the  state  six  alternate  sections  of 
land,  designated  by  even  numbers,  on  each 
side  of  the  road  and  branches,  with  the  usual 
reservation  of  any  portion  found  to  be  sold 
by  the  United  States,  or  to  which  the  right 
of  pre-emption  had  attached  at  the  time  the 
route  of  the  road  and  branches  was  definitely 
fixed,  in  which  case  provision  was  made  for 
the  selection  of  equivalent  lands  in  contiguous 
sections. 

The  lands  granted  were  made  subject  to 
the  disposition  of  the  legislature  of  the  state; 
and  it  was  declared  that  the  railroad  and  its 
branches  should  be  and  remain  a  public  high- 
way for  the  use  of  the  government  of  the 
United  States,  free  from  toll  or  other  charge 
upon  the  transportation  of  their  property  or 
troops. 

Tlie  act  was  formally  accepted  by  the  leg- 
islature of  the  state,  Februarv  17,  1851, 
(Laws  1851,  pp.  192,  193.)  A  few  days  be- 
fore, and  on  the  10th  of  that  month,  the 
Illinois  (Central  Railroad  Company  was  incor- 
porated. It  was  invested  generally  with  the 
powers,  privileges,  immunities,  and  fran- 
cliists  of  corporations,  and  specifically  with 
the  power  of  acquiring  by  purchase  or  other- 
wise, and  of  holding  and  conveying,  real  and 
personal  estate  which  might  be  needful  to 
carry  into  effect,  fully,  the  purposes  of  the 
act. 

It  was  also  authorized  to  survey,  locate, 
construct,  and  ofierate  a  railroad,  with  one 
or  more  tracks  or  lines  of  rails,  between  the 
points  designated  and  the  branches  men- 
tioned; and  it  was  declared  that  the  company 
should  have  a  right  of  way  upon,  and  might 
apjiropriate  to  its  sole  use  and  control,  for 
the  purposes  contemplated,  land  not  exceed- 
ing 20J  feet  in  width  throughout  its  entire 
length,  and  might  enter  upon  and  take  pos- 
session of  and  use  any  lands,  streams,  and 
materials  of  every  kind,  for  the  location  of 
depots  and  stopping  stages,  for  the  purpose 
of  constructing  bridges,  dams,  embankments, 
engine  houses,  shops,  and  other   buildings 


16 


WHAT  IS  REAL  PROPERTY. 


necessary  for  completing,  inaintaiuing.  and 
operating  the  road.  All  sucli  lands,  waters, 
materials,  and  privileges  belonging  to  the 
state  were  granted  to  the  corporation  for 
that  purpose;  and  it  was  provided  that  when 
owned  by  or  belonging  to  any  person,  com- 
pany, or  corporation,  and  they  could  not  be 
obtained  by  voluntary  grant  or  release,  the 
same  might  be  taken  and  paid  for  by  proceed- 
ings for  condemnation,  as  prescribed  by  law. 
It  was  also  enacted  that  nothing  in  the  act 
should  authorize  the  corporation  to  make  a 
location  of  its  road  witliin  any  city  without 
the  consent  of  its  common  council.  This  con- 
sent was  given  by  an  ordinance  of  the  com- 
mon council  of  Chicago,  adopted  .June  14, 
1852.  By  its  tirst  section  it  granted  permis- 
sion to  the  company  to  lay  down,  construct, 
and  maintain  within  the  limits  of  the  city, 
and  along  the  margin  of  the  lake  within  and 
adjacent  to  the  same,  a  railroad,  with  one  or 
more  tracks,  and  to  operate  the  same  with 
locomotive  engines  and  cars,  under  such 
rules  and  regulations,  with  reference  to  speed 
of  trains,  the  receipt,  safe-keeping,  and  de- 
livery of  freight,  and  arrangements  for  the  ac- 
commodation and  conveyance  of  passengers, 
not  inconsistent  with  the  public  safety,  as  the 
cou)pany  might  from  time  to  time  establish, 
and  to  have  the  right  of  way  and  all  powers 
incident  to  and  necessary  therefor,  in  the 
manner  and  upon  the  following  terms  and 
conditions,  namely:  That  the  road  should 
enter  the  city  at  or  near  tlie  intersection  of  its 
then  southern  boundary  with  J^ake  Michigan, 
and  follow  the  shore  on  or  near  the  margin 
of  the  lake  northerly  to  the  soutiiern  bounds 
of  the  open  space  known  as  "Lake  Park," 
in  front  of  canal  section  15,  and  continue 
northerly  across  the  open  space  in  front  of 
that  section  to  such  grounds  as  tlie  com- 
pany might  acquire  between  the  north  line 
of  liandolph  street  and  the  Ch;cai,'o  river, 
in  the  Ft.  Dearborn  addition,  upon  which 
grounds  should  be  located  the  depot  of  the 
railroad  company  within  the  city,  and  such 
other  buildings,  slips,  or  apparatus  as  miglit 
be  necessary  anil  convenient  for  its  business. 
But  it  was  understood  that  the  city  did  not 
undertake  to  obtain  for  the  company  any 
right  of  way,  or  other  right,  privilege,  or 
easement,  not  then  in  its  power  to  grant,  or 
to  assume  any  liability  or  responsibility  for 
the  acts  of  the  company.  It  also  declared 
that  the  company  might  enter  upon  and  use 
in  perpetuity  for  its  line  of  road,  and  other 
works  necessary  to  protect  the  same  from  the 
lake,  a  width  of  3U0  feet  from  the  southern 
boundary  of  the  public  ground  near  Twelfth 
street,  to  the  northern  line  of  Kandolph  street; 
tiie  inner  or  west  line  of  the  ground  to  be  not 
less  than  400  feet  east  from  the  west  line  of 
Michigan  avenue,  and  parallel  thereto;  and 
It  was  authorized  to  extend  its  works  and  till 
out  into  the  lake  to  a  point  in  the  southern 
[>ier  not  less  than  400  feet  west  from  the  then 
east  end  of  the  same,  thence  parallel  with 
Michigan  avenue  to  the  north  side  of  Ran- 
dolph street  extended;  but  it  was  stated  that 


the  common  council  did  not  grant  any  right 
or  privilege  beyond  the  limits  above  specified, 
nor  beyond  the  line  that  might  be  actually 
occupied  by  the  works  of  the  company. 

By  the  ordinance  the  company  was  required 
to  erect  and  maintain  on  the  western  or  in- 
ner line  of  the  ground  pointed  out  for  its. 
main  tracks  on  the  lake  shore  such  suitable 
walls,  fences,  or  other  sufficient  works  as 
would  prevent  animals  from  straying  upon 
or  obstructing  its  tracks,  and  secure  persons 
and  property  from  danger,  and  to  construct 
such  suitable  gates  at  proper  places  at  the 
ends  of  the  streets,  which  were  then  or  might 
thereafter  be  laid  out,  as  required  by  the 
common  council,  to  afford  safe  access  to  the 
lake;  and  provided  that,  in  the  case  of  the 
construction  of  an  outside  harbor,  streets 
might  be  laid  out  to  approach  the  same  in  the 
manner  provided  by  law.  The  company  was 
also  required  to  erect  and  complete  within 
three  years  after  it  should  have  accepted  the 
ordinance,  and  forever  thereafter  maintain, 
a  continuous  wall  or  structure  of  stone  ma- 
sonry, pier  work,  or  other  sufficient  material, 
of  regular  and  sightly  appearance,  and  not  to 
exceed  in  height  the  general  level  of  Michigan 
avenue,  opposite  thereto,  from  the  north  side 
of  Randolph  street  to  the  southern  bound  of 
Lake  Park,  at  a  distance  of  not  more  than 
300  feet  east  from  and  parallel  with  the  west- 
ern or  inner  line  of  the  company,  and  con- 
tinue the  works  to  the  southern  boundary  of 
the  city,  at  such  distance  outside  of  the  track 
of  the  road  as  might  be  expedient,  which 
structure  and  works  should  be  of  sufficient 
strength  and  magnitude  to  protect  the  entire 
front  of  the  city,  between  the  noith  line  of 
liandol[)h  street  and  its  southern  boundary, 
from  further  damage  or  injury  from  the  ac- 
tion of  tiie  waters  of  Lake  Michigan;  and 
that  that  part  of  the  structure  south  of  Lake 
Park  should  be  commenced  and  prose -nted 
with  reasonable  dispatch  after  acceptance  of 
the  ordinance.  It  was  also  enacted  that  the 
company  should  "not  in  any  manner,  nor  for 
any  purpose  whatever,  occupy,  use,  or  in- 
trude ujjon  the  open  ground  known  as  'Lake 
Park,'  belonging  to  the  city  of  Chicago,  lying 
between  Michigan  avenue  and  the  western 
or  inner  line  before  mentioned,  except  so  far 
as  the  common  council  may  consent,  for  the 
convenience  of  said  coui[)any,  while  con- 
structing or  repairing  the  works  in  front  of 
said  ground;"  and  it  was  declared  that  the 
company  should  "erect  no  buildings  between 
the  north  line  of  Randolph  street  and  the 
south  side  of  the  said  Lake  Park,  nor  occupy 
nor  use  the  works  ju-oposed  to  be  constructed 
between  th^se  points,  except  for  the  passage 
of  or  for  making  up  or  distributing  their 
trains,  nor  place  upon  any  part  of  their  works 
between  said  points  any  obstruction  to  the 
view  of  the  lake  from  the  shoie,  nor  sulfer 
their  locomotives,  cars,  or  other  articles  to  re- 
main upon  their  tracks,  but  only  erect  such 
works  as  are  proper  for  the  construction  of 
their  necessary  tracks,  and  protection  of  the 
same. " 


RIPARIAN  PROPRIETORS. 


17 


The  company  was  allowed  90  days  to  ac- 
cept this  ordinance,  and  it  was  provided  tiiat 
upon  such  acceptance  a  contract  embodying 
its  provisions  should  be  executed  and  deliv- 
ered between  tlie  city  and  the  company,  and 
that  the  rights  and  privileges  conferred  upon 
tlie  company  should  depend  upon  the  per- 
formance on  its  part  of  the  requirements 
made.  The  ordinance  was  accepted  and  the 
required  agreement  drawn  and  executed  on 
the  28th  of  March,  1853. 

Under  the  authority  of  this  ordinance  the 
railroad  company  located  its  tracks  within 
the  corporate  limits  of  the  city.  Those  run- 
ning northward  from  Twelfth  street  were 
laid  upon  piling  in  the  waters  of  the  lake. 
The  shore  line  of  the  lake  was  at  tliat  time 
at  Park  Row,  about  400  feet  from  the  west 
line  of  Michigan  avenue,  and  at  Randoljih 
street,  about  112J  feet.  Since  then  the  space 
between  the  shore  line  and  the  tracks  of  the 
railroad  company  has  been  tilled  with  earth 
under  the  direction  of  the  city,  and  is  now 
solid  ground. 

After  the  tracks  were  constructed  tiie  com- 
pany erected  a  breakwater  east  of  its  roadway 
upon  a  line  parallel  with  the  west  line  of 
Michigan  avenue,  and  afterwards  filled  up 
the  space  between  the  breakwater  and  its 
tracks  with  earth  and  stone. 

We  do  not  deem  it  material,  for  the  deter- 
mination of  any  questions  presented  in  this 
case,  to  describe  in  detail  the  extensive  works 
of  the  railroad  company  under  the  permission 
given  to  locate  its  road  witliin  the  city  by  the 
ordinance.  It  is  sulficient  to  say  that,  when 
this  suit  was  commenced,  it  had  reclaimed 
from  the  waters  of  the  lake  a  tract  200  feet 
in  width,  for  the  whole  distance  allowed  for 
its  entry  within  the  city,  and  constructed 
thereon  the  tracks  needled  for  its  railway, 
with  all  the  guards  against  danger  in  its  ap- 
proach and  crossings  as  specified  in  the  ordi- 
nance, and  erected  the  designated  breakwater 
beyond  its  tracks  on  the  east,  and  tlie  neces- 
sary works  for  the  protection  of  the  sliore  on 
the  west.  Its  works  in  no  respect  interfered 
with  any  useful  freedom  in  the  use  of  the 
waters  of  the  lake  for  commerce, — foreign, 
interstate,  or  domestic.  They  were  con- 
structed under  the  authority  of  the  law  by 
the  requirement  of  the  city,  as  a  condition  of 
its  consent  tliat  the  company  miglit  locate 
its  road  within  its  limits,  and  cannot  be  re- 
garded as  such  an  encroachment  upon  the 
domain  of  the  state  as  to  require  the  inter- 
position of  tlie  court  for  their  removal  or  for 
any  restraint  in  their  use. 

The  railroad  company  never  acquired  by 
the  reclamation  from  the  waters  of  the  lake 
of  the  land  upon  which  its  tracks  are  laid,  or 
by  the  construction  of  the  road  and  works 
connected  therewith,  an  absolute  fee  in  the 
tract  reclaimed,  with  a  consequent  right  to 
dispose  of  the  same  to  other  parties,  or  lo  use 
it  for  any  other  purpose  than  the  one  desig- 
nated,— the  construction  and  operation  of  a 
railroad  thereon,  with  one  or  more  tracks 
and  works  in  connection  with  the  road  or  in 
GATBS,R.P.— 2 


aid  thereof.  The  act  incorporating  the  com- 
pany only  irranted  to  it  a  right  of  way  over 
the  public  lands  for  its  use  and  control,  for 
the  purpose  contemplated,  wiiicli  was  to  en- 
able it  to  survey,  locate,  and  construct  and 
operate  a  railroad.  All  lands,  waters,  ma- 
terials, and  jirivileges  belonging  to  tlie  state 
were  granted  solely  for  that  purpose.  It  did 
not  contemplate,  much  less  autliorize,  any 
diversion  of  the  property  to  any  other  pur- 
pose. The  use  of  it  was  restricted  to  the 
purjiose  expressed.  "While  the  grant  to  it  in- 
cluded waters  of  streams  in  the  line  of  the 
right  of  way  belonging  to  the  state,  it  was 
accompanied  with  a  declaration  that  it  should 
not  be  so  construed  as  to  authorize  the  cor- 
poration to  interrupt  the  navigation  of  the 
streams.  If  the  waters  of  the  lake  may  be 
deemed  to  be  included  in  the  designation  of 
streams,  then  their  use  would  be  held  equally 
restricted.  The  prohibition  upon  the  com- 
pany to  make  a  location  of  its  road  within 
any  city,  without  the  consent  of  its  common 
council,  necessarily  empowered  that  body  to 
prescribe  the  conditions  of  the  entry,  so  far 
at  least  as  to  designate  the  place  where  it 
should  be  made,  the  character  of  the  tracks 
to  be  laid,  and  the  protection  and  guards  that 
should  be  constructed  to  insure  their  safety. 
Nor  did  the  railroad  company  acquire,  by  the 
mere  construction  of  its  road  and  other 
works,  any  rights  as  a  riparian  owner  to  re- 
claim still  further  lanils  from  the  waters  of 
the  lake  for  its  use,  or  the  construction  of 
piers,  docks,  and  wharves  in  the  furtherance 
of  its  business.  The  extent  to  which  it  could 
reclaim  the  land  under  the  waters  was  lim- 
ited by  the  conditions  of  the  ordinance,  which 
was  simply  for  the  construction  of  a  railroad 
on  a  track  not  to  exceed  a  specified  width, 
an^l  of  works  connected  therewith. 

We  shall  hereafter  consider  what  rights 
the  company  acquired  as  a  riparian  owner 
from  its  acquisition  of  title  to  lands  on  the 
shore  of  the  lake,  but  at  present  we  are  speak- 
ing only  of  what  rights  it  acquired  from  the 
reriamalion  of  tlie  tract  upon  which  the  rail- 
road and  the  works  in  connection  with  it  are 
liuilt.  The  construction  of  a  pier  or  the  ex- 
tension of  any  land  into  navigable  waters  for 
a  railroad  or  other  purposes,  by  one  not  the 
owner  of  lands  on  the  shore,  does  not  give 
the  builder  of  such  pier  or  extension,  whether 
an  indivitlual  or  corporation,  any  riparian 
rights.  Those  rights  are  incident  to  riparian 
ownership.  They  exist  with  such  owner- 
ship, and  pass  with  the  transfer  of  the  land; 
and  the  land  must  not  only  be  contiguous  to 
the  water,  but  in  contact  with  it.  Proxim- 
ity, without  contact,  is  insuthcient.  The 
riparian  right  attaches  to  land  on  the  border 
of  navigable  water,  without  any  declaration 
to  that  effect  from  the  former  owner,  and  its 
designation  in  a  conveyance  by  him  would 
be  surplusage.  See  Gould,  Waters,  §  148, 
and  authorities  there  cited. 

The  riparian  proprietor  is  entitled,  among 
other  rights,  as  held  in  Yates  v.  Milwaukee, 
10  Wall.  497,  504,  to  access  to  the  navigable 


18 


WHAT  IS  REAL  PROPERTY. 


part  of  the  water  on  the  front  of  which  lies 
his  land,  and  lor  that  purpose  to  make  a 
landing,  wharf,  or  pier  for  his  own  use  or 
for  the  use  of  the  public,  subject  to  such  gen- 
eral rules  and  regulations  as  the  legislature 
may  prescrilje  for  the  protection  of  the  rights 
of  tlie  public.  In  the  case  cited  the  court 
held  that  this  riparian  right  was  property, 
and  valuable,  and,  though  it  must  be  enjoyed 
in  due  subjection  to  the  rights  of  the  public,  it 
could  not  lie  arbitrarily  or  capriciously  im- 
paired. It  had  been  held  in  the  previous 
case  of  Dutton  v.  Strong,  1  Black,  23,  33, 
that,  whenever  the  water  of  the  shore  was 
too  shoal  to  be  navigable,  there  was  the  same 
necessity  for  wharves,  piers,  and  landing 
places  as  in  the  bays  and  arms  of  the  sea; 
that,  where  tliat  necessity  existed,  it  was  dif- 
ficult to  see  any  reason  for  denying  to  the 
adjacent  owner  the  right  to  supply  it;  but 
that  the  right  must  be  understood  as  termi- 
nating at  the  point  of  navigability,  where  the 
necessity  for  such  erections  ordinarily  ceased. 

In  this  case  it  appears  that  fractional  sec- 
tion 10,  which  was  included  within  the  city 
limits  bordering  on  tlie  lake  front,  was,  many 
years  before  this  suit  was  brought,  divided, 
under  the  autliority  of  the  United  States,  into 
blocks  and  lots,  and  the  lots  sold.  The  pro- 
ceedings taken  and  the  laws  passed  on  the 
subject  for  the  sale  of  the  lots  are  stated  with 
great  particularity  in  tlie  opinion  of  tlie  court 
below,  but  for  our  purpose  it  is  sufficient  to 
mention  that  the  lots  laid  out  in  fractional 
section  10  belonging  to  the  United  States 
were  sold,  and,  either  directly  or  from  pur- 
cliasers,  the  title  to  some  of  them  fronting 
on  the  lake  north  of  Randolph  street  became 
vested  in  the  railroad  coai!. any,  and  thecom- 
jiany,  finding  the  lake  in  front  of  those  lots 
shadow,  lilled  it  in,  and  upon  the  reclaimed 
land  constructed  slips,  wharves,  and  piers, 
the  last  three  piers  in  1872-73,  1880,  and 
1881,  wliicli  it  claims  to  own  and  to  have  the 
right  to  use  in  its  business. 

According  to  the  law  of  riparian  owner- 
ship which  we  have  stated,  this  claim  is  well 
founded,  so  f.ir  as  the  piers  do  not  extend  be- 
yond the  point  of  navigability  in  the  waters 
of  the  lake.  We  are  not  fully  satisfied  that 
sucii  is  the  case,  from  the  evidence  wliicli  the 
company  has  produced,  and  tlie  fact  is  not 
conceded.  Nor  does  the  court  below  find 
tliatsuch  navitrable  point  had  been  establish- 
ed by  any  public  authority  or  judicial  deci- 
sion, or  that  it  had  any  foun  lation,  other 
than  the  judgment  of  the  railroad  company. 

The  same  position  may  be  taken  as  to  the 
claim  of  the  company  to  the  p'.er  and  docks 
erected  in  front  of  Michigan  avenue  between 
tlie  lines  of  Twelfth  and  Sixteenth  streets  ex- 
tended. The  company  had  previously  ac- 
quired the  title  to  certain  lots  fronting  on  the 
lake  at  that  point,  and,  upon  its  claim  of 
riparian  riglits  from  that  ownership,  liad 
erected  the  structures  in  question.  Its  own- 
ership of  them  likewise  depends  upon  the 
question  whether  tliey  are  extended  beyond 
or  are  limited  to  the  navigable  point  of  the 


waters  of  the  lake,  of  which  no  satisfactory 
evidence  was  offered. 

Upon  the  land  reclaimed  by  the  railroad 
company  as  riparian  proprietor  in  front  of 
lots  into  which  section  10  was  divided,  which 
it  had  purchased,  its  passenger  depot  was 
erected  north  of  Randolph  street;  and  to 
facilitate  its  approach  the  common  council, 
by  ordinance  adopted  September  10,  1855, 
authorized  it  to  curve  its  tracks  westwardiy 
of  tlie  line  fixed  by  the  ordinance  of  1852,  so 
as  to  cross  that  line  at  a  point  not  more  than 
200  feet  south  of  Randolph  street,  in  accord- 
ance with  a  specified  plan.  This  permission 
was  given  upon  the  condition  that  the  com- 
pany should  lay  out  upon  its  own  land,  west 
of  and  alongside  its  passenger  house,  a  street 
50  feet  wide,  extending  from  Water  street  to 
Randolpli  street,  and  fill  the  same  up  its  en- 
tire length,  within  two  years  from  the  pas- 
sage of  the  ordinance.  The  company's  tracks 
were  curved  as  permitted,  the  street  referred 
to  was  opened,  the  required  filling  was  done, 
and  tlie  street  has  ever  since  been  used  by 
the  public.  It  being  necessary  that  the  rail- 
road  company  sliould  have  additional  luears 
of  approaching  and  using  its  station  grounds 
between  Piandolph  street  and  tiie  Ciiicago 
river,  tlie  city,  by  anotherordinance,  adopted 
September  15,  1856,  granted  it  permission  to 
enter  and  use,  in  perpetuity,  for  its  line  of 
railro.id  and  other  works  necessary  to  protect 
the  sa.ne  from  the  lake,  the  space  between  its 
then  breakwater  and  a  line  drawn  from  a 
point  tiiei-eon  700  feet  south  of  the  north  line 
of  Randolph  street  extended,  and  running 
thence  on  a  straight  line  to  tlie  southeast 
corner  of  its  present  breakwater,  thence  to 
the  river,  and  the  space  thus  indicated  the 
railroad  company  occupied  and  continued  to 
hold  pursuant  to  this  ordinance;  and  we  do 
not  perceive  any  valid  objection  to  its  con- 
tinued holding  of  the  same  for  the  purposes 
declared, — that  is,  as  additional  me.ins  of  ap- 
proaching and  using  its  station  grounds. 

We  proceed  to  consider  the  claim  of  the 
railroad  company  to  the  ownership  of  sub- 
merged lands  in  the  harbor,  and  tlie  right 
to  construct  such  wharves,  piers,  docks,  and 
otlier  works  therein  as  it  may  deem  proper 
for  its  interest  and  business.  The  claim  is 
founded  upon  the  tliird  section  of  the  act  of 
the  legislature  of  the  state  passed  on  the  16tii 
of  A])ril,  1S69,  the  material  part  of  which  is 
as  follows: 

"Sec.  3.  The  right  of  the  Illinois  Central 
Railroad  Company  under  the  grant  from  the 
state  in  its  charter,  which  said  grant  consti- 
tutes a  part  of  the  consideration  for  whicii 
the  said  company  pays  to  the  state  at  least 
seven  per  cent,  of  its  gross  earnings,  and  un- 
der and  by  virtue  of  its  appropriation,  occu- 
pancy, use,  and  control,  and  the  riparian 
ownership  incident  to  such  grant,  approi)ri- 
ation,  occupancy,  use,  and  control,  in  and  to 
the  lands  submerged  or  otherwise  lying  east 
of  the  said  line  running  parallel  with  and 
400  feet  east  of  the  west  line  of  Mitliigan 
avenue,  in  fractional  sections  ten  and  fifteen. 


RIPARIAN  PROPRIETORS. 


19 


township  and  range  as  aforesaid,  is  hereby 
conlirnied;  and  all  the  right  and  title  of  tlie 
«t;ite  of  Illinois  in  and  to  the  submerged 
l.iiids  constituting  the  bed  of  J.ake  Michigan, 
and  lying  east  of  the  tracks  and  breakwater 
of  tlie  Illinois  Central  Railroad  Company,  for 
a  distance  of  one  milp,  and  between  the  south 
line  of  the  south  pier  extended  eastwardly 
and  a  line  extruded  eastward  fiom  the  south 
line  of  lot  twenty-one,  south  of  and  near  to 
tli;^  roundhouse  and  machine  shops  of  said 
company,  in  the  south  division  of  the  said 
city  of  ChicMgo,  are  liereby  granted  in  fee  to 
the  said  Illinois  Central  r..iilroad  Company, 
its  successors  and  assigns:  provided,  how- 
ever, that  the  fee  to  said  lands  shall  be  hold 
by  said  company  In  perpetuity,  and  that  the 
said  company  shall  not  have  power  to  grant, 
sell,  or  convey  the  fee  to  the  same,  and  that 
all  gross  receipts  from  use,  prolits,  leases,  or 
otherwise,  of  said  lands,  or  the  improve- 
ments thereon,  or  that  may  hereafter  be 
made  thereon,  shall  form  a  part  of  the  gross 
proceeds,  receipts,  and  income  of  the  said 
Illinois  Central  Railroad  Company,  upon 
which  said  company  shall  forever  pay  into 
the  state  treasury,  semiannually,  the  per 
centum  provided  for  in  its  charter,  in  ac- 
cordance with  the  requirements  of  said  char- 
ter: and  provided,  also,  that  nothing  herein 
contained  shall  authorize  obstructions  to  the 
Chicago  harbor,  or  impair  the  public  right  of 
navigation,  nor  shall  this  act  be  construed  to 
exempt  the  Illinois  Central  Railroad  Com- 
pany, its  lessees  or  assigns,  from  any  act  of 
the  general  assembly  which  may  be  liereafter 
passed,  regulating  the  rates  of  wharfage  and 
dockage  to  be  charged  in  said  harbor. " 

The  act  of  which  this  section  is  a  part  was 
accepted  by  a  resolution  of  the  board  of 
directors  of  the  company  at  its  office  in  the 
city  of  New  York,  July  6,  1870,  but  the  ac- 
ceptance was  not  communicated  to  the  state 
until  the  18th  of  November,  1870.  A  copy 
of  Mii!  resolution  was  on  that  day  forwarded 
to  the  secretary  of  state,  and  tiled  and  re- 
corded by  him  in  the  records  of  his  office. 
On  the  15th  of  April,  1873,  the  legislature  of 
Illinois  repealed  the  act.  The  questions 
presented  relate  to  the  validity  of  the  section 
cited,  of  the  act,  and  the  effect  of  the  repeal 
upon  its  operation. 

The  section  in  question  has  two  objects  in 
view:  One  was  to  confirm  certain  alleged 
rights  of  the  railroad  company  under  the 
grant  from  the  state  in  its  charter  and  under 
and  "by  virtue  of  its  appropriation,  occu- 
pancy, use,  and  control,  and  the  riparian 
ownership  incident"  thereto,  in  and  to  the 
lands  submerged  or  otherwise  lying  east  of  a 
line  parallel  with  and  400  feet  east  of  the 
west  line  of  Michigan  avenue,  in  fractional 
sections  10  and  15.  The  other  object  was  to 
grant  to  the  railroad  company  submerged 
lands  in  the  harbor. 

The  confirmation  made,  whatever  the 
operation  claimed  for  it  in  other  respects, 
cannot  be  invokid  so  as  to  extend  the  ri- 
parian  right  which  the  company  possessed 


from  its  ownership  of  lands  in  sections  10 
and  15  on  the  sliore  of  the  lake.  Whether 
the  jiiers  or  docks  constructed  by  it  after  the 
passage  of  the  act  of  1809  extend  beyond  the 
point  of  navigability  in  the  waters  of  the 
lake  must  be  the  subject  of  judicial  inquiry 
upon  the  execution  of  this  decree  in  the  court 
below.  If  it  be  ascertained  upon  such  in- 
quiry and  determined  that  such  piers  and 
docks  do  not  extend  beyond  the  point  of 
practicable  navigability,  the  claim  of  the  rail- 
road ciuniiany  to  their  title  and  possession 
will  be  confirmed;  but  if  they  or  either  of 
them  arc  found,  on  such  inquiry,  to  extend 
beyond  the  point  of  such  navigability,  then 
the  state  will  be  entitled  to  a  decree  tluit 
they,  or  the  one  thus  extended,  be  abated 
and  removed  to  the  extent  shown,  or  for 
such  other  disposition  of  the  extension  as, 
upon  the  application  of  the  state  and  the 
facts  established,  may  be  authorized  by  law. 

As  to  the  grant  of  the  submerged  lands, 
the  act  declares  that  all  the  right  and  title  of 
the  state  in  and  to  the  submerged  lands,  con- 
stituting the  bed  of  Lake  Michigan,  and  ly- 
ing east  of  the  tracks  and  breakwater  of  t!ie 
company  for  the  distance  of  one  mile,  and 
between  the  south  line  of  the  south  pier  ex- 
tended eastw'ardly  and  a  line  extended  east- 
wardly from  the  south  line  of  lut  21,  south 
of  and  near  to  the  roundhouse  and  ma- 
chine shops  of  the  company,  "are  granted 
in  fee  to  the  railroad  company,  its  succes- 
sors and  assigns."  The  grant  is  accompa- 
nied with  a  proviso  that  the  fee  of  the  lands 
shall  be  held  by  the  company  in  perpetuity, 
and  that  it  shall  not  have  the  power  to  grant, 
sell,  or  convey  the  fee  thereof.  It  also  de- 
clares that  nothing  therein  shall  authorize 
obstructions  to  the  harbor,  or  impair  the  pub- 
lic right  of  navigation,  or  be  construed  to 
exempt  the  company  from  any  act  regulat- 
ing the  rates  of  wharfage  and  dockage  to  be 
charged  in  the  harbor. 

This  clause  is  treated  by  the  ctuinsel  of  the 
Company  as  an  absolute  conveyance  to  it  of 
title  to  the  submerged  lands,  giving  it  as 
full  and  complete  power  to  use  and  dispose 
of  the  same,  except  in  the  technical  transfer 
of  the  fee,  in  any  manner  it  may  choose,  as 
if  they  were  uplands,  in  no  respect  covered 
or  affected  by  navigable  waters,  and  not  as 
a  license  to  use  the  lands  subject  to  revo- 
cation by  the  state.  Treating  it  as  such  a 
conveyance,  its  validity  must  be  determined 
by  the  consideration  whether  the  legislature 
was  competent  to  make  a  grant  of  tlie  kind. 

The  act,  if  valid  and  operative  to  the  ex- 
tent claiuied,  placed  under  the  control  of  the 
railroad  company  nearly  the  whole  of  the 
submerged  lands  of  the  harbor,  subject  only 
to  the  limitations  that  it  should  not  authorize 
obstructions  to  the  harbor,  or  impair  the 
public  right  of  navigation,  or  exclude  the 
legislature  from  regulating  the  rates  of 
wharfage  or  dockage  to  be  charged.  With 
these  limitations,  the  act  put  it  in  the  power 
of  the  company  to  delay  indefinitely  the  im- 
provement of  the  harbor,  or  to  construct  as 


20 


WHAT  IS  REAL  PROPERTY. 


many  docks,  piers,  and  wharves  and  other 
works  as  it  might  choose,  and  at  such  posi- 
tions in  tlie  harboras  might  suit  its  purposes, 
and  permit  any  kind  of  business  to  be  con- 
ducted thereon,  and  to  lease  them  out  on  its 
own  terms  for  indefinite  periods.  Tiie  inhi- 
bition against  the  technical  transfer  of  the 
fee  of  any  portion  of  the  submerged  lands 
was  of  little  consequence  when  it  could  make 
a  lease  for  any  period,  and  renew  it  at  its 
pleasure;  and  the  inhibitions  against  author- 
izing obstructions  to  the  harbor  and  impair- 
ing the  public  right  of  navigation  placed  no 
impediments  upon  the  action  of  the  railroad 
company  which  did  not  previously  exist.  A 
corporation  created  for  one  purpose,  the  con- 
struction and  operation  of  a  railroad  between 
designated  points,  is  by  the  act  converted 
into  a  corporation  to  manage  and  practically 
control  the  harbor  of  Chicago,  not  simply  for 
its  own  purpose  as  a  railroad  corporation, 
but  for  its  own  profit -generally. 

The  circumstances  attentiing  the  passj'.ge 
of  the  act  through  the  legis:attire  were  on 
the  hearing  the  subject  of  much  criticism. 
As  originally  introduced,  the  purpose  of 
the  act  was  to  enable  tlie  city  of  Chicago  to 
enlarge  its  liarbor,  and  to  grant  to  it  the  title 
and  interest  of  the  state  to  certain  lands  ad- 
jacent to  the  shore  of  Lake  Michigan,  on  the 
eastern  front  of  the  city,  and  place  the  har- 
bor under  its  control:  giving  it  all  the  nec- 
essary powers  for  its  wise  management. 
But  during  the  passage  of  the  act  its  ))ur- 
port  was  changed.  Instead  of  providing  for 
the  cession  of  the  submerged  lands  to  the 
city,  it  provided  for  a  cession  of  them  to  the" 
railroad  company.  It  was  urged  that  the 
title  of  the  act  was  not  changed  to  corre- 
spond with  its  changed  purpose,  and  an  ob- 
jection was  taken  to  its  validity  on  that  ac- 
count. But  tlie  majority  of  the  court  were 
of  opinion  that  the  evidence  was  insufficient 
to  show  tliat  the  requirement  of  the  consti- 
tution of  the  state,  in  its  passage,  was  iiot 
comulied  with. 

The  question,  therefore,  to  be  considered, 
is  whether  the  legislature  was  competent  to 
tiius  deprive  the  state  of  its  ownership  of  tlie 
submerged  lands  in  the  harbor  of  Ciiicago, 
and  of  the  consequent  control  of  its  waters; 
^  or,  in  other  words,  whether  the  railroad  cor- 
'  poration  can  hold  the  lands  and  control  the 
waters  by  the  grant,  against  any  future  ex- 
ercise of  power  over  them  by  the  state. 

That  the  state  holds  the  title  to  tiie  lands 
under  the  navigable  waters  of  Lake  Michi- 
gan, within  its  limits,  in  the  same  manner 
^  that  the  state  holds  title  to  soils  under  tide 
water,  by  the  common  law,  we  have  already 
shown;  andthattitle  necessarily  carries  with 
it  control  over  the  waters  above  them,  when- 
ever the  lands  are  subjected  to  use.  But  it 
is  a  title  different  in  character  from  that 
which  the  state  holds  in  lands  intended  for 
sale.  It  is  different  from  the  title  which  the 
United  States  hold  in  the  public  lands  which 
are  open  to  pre-emption  and  sale.  It  is  a 
title  held  in  trust  for  the  people  of  the  state, 


that  they  may  enjoy  the  navigation  of  the 
waters,  carry  on  commerce  over  them,  and 
have  liberty  of  fisliing  therein,  freed  from 
tiie  obstruction  or  interference  of  private 
parties.  The  interest  of  tlie  people  in  the 
navigation  of  the  waters  and  in  commerce 
over  them  may  be  improved  in  many  in- 
stances by  the  erection  of  wharves,  docks, 
and  piers  therein,  for  which  purpose  the  state 
may  grant  parcels  of  tlie  subiiierged  lands; 
and,  so  long  as  their  disposition  is  made  for 
such  purpose,  no  valid  objections  can  be 
made  to  the  grants.  It  is  grants  of  parcels 
of  lands  under  navigable  waters  tliat  may 
afford  foundation  for  wharves,  piers,  docks, 
and  other  structures  in  aid  of  commerce,  and 
grants  of  parcels  wiiicli,  being  occupied,  do 
not  substantially  impair  the  public  interest 
in  the  lands  and  waters  remaining,  that  are 
chiefly  considered  and  sustained  in  tlie  ad- 
judged cases  as  a  valid  exercise  of  legislative 
power  consistently  with  the  trust  to  the  pub- 
lic upon  which  such  lands  are  held  by  the 
state.  But  that  is  a  very  different  doctiine 
from  the  one  which  would  sanction  the  abdi- 
cation of  the  general  control  of  the  state  over 
lands  under  the  navigable  waters  of  an  en- 
tire harbor  or  bay,  or  of  a  sea  or  lake.  Such 
abdication  is  not  consistent  witli  the  exercise 
of  that  trust  which  requires  the  government 
of  the  state  to  preserve  such  waters  for  the 
use  of  the  public.  Tiie  trust  devolving  upon 
the  state  for  the  public,  and  which  can  only 
be  discharged  by  the  management  and  con- 
trol of  property  in  which  the  public  has  an 
intei"est,  cannot  be  relinquished  by  a  transfer 
of  the  property.  The  control  of  the  state 
for  tiie  purposes  of  the  trust  can  never  be 
lost,  except  as  to  such  parcels  as  are  used  in 
promoting  the  interests  of  tlie  public  therein, 
or  can  bci  disposed  of  without  any  substantial 
impairment  of  the  public  interest  in  the 
lands  and  waters  remaining.  It  is  only  by 
observing  the  distinction  between  a  grant  of 
such  parcels  for  the  improvement  of  the  pub- 
lic interest,  or  which  when  occupied  do  not 
substantially  impair  the  public  interest  in 
the  lands  and  waters  remaining,  and  a  grant 
of  the  whole  property  in  which  the  public  is 
interested,  that  the  language  of  the  adjudged 
cases  can  be  reconciled.  General  language 
sometimes  found  in  opinions  of  the  courts, 
expressive  of  absolute  ownership  and  control 
by  the  state  of  lands  under  navigable  waters, 
irrespective  of  any  trust  as  to  their  use  and 
disposition,  must  be  read  and  construed  with 
reference  to  the  special  facts  of  the  particu- 
lar cases.  A  grant  of  all  the  lands  under  the 
navigable  waters  of  a  state  has  never  been 
adjudged  to  be  within  the  legislative  power; 
and  any  attempted  grant  of  the  kind  would 
be  held,  if  not  absolutely  void  on  its  face,  as 
subject  to  revocation.  The  state  can  no 
more  abdicate  its  trust  over  property  in  which 
the  whole  people  are  interested,  like  naviga- 
ble waters  and  soils  under  them,  so  as  to 
leave  them  entirely  under  the  use  and  con- 
trol (if  private  parties,  except  in  tiie  instance 
of  parcels  mentioned  for  the  improvement  of 


KIPAllIAN  PROPRIETORS. 


21 


the  navigation  and  use  of  the  waters,  or 
when  parcels  can  be  disposed  of  without  im- 
pairment of  the  public  interest  in  what  re- 
mains, than  it  can  abdicate  its  police  powers 
in  the  administration  of  fiovernment  and  the 
preservation  of  tlie  peace.  In  the  adminis- 
tration of  government  the  use  of  such  powers 
may  for  a  limited  period  be  delegat^^d  to  a 
municipality  or  other  body,  but  there  always 
remains  with  the  state  the  right  to  revoke 
tliose  powers  and  exercise  them  in  a  more 
direct  manner,  and  one  more  conformable  to 
its  wi.slies.  So  with  trusts  connected  with 
public  property,  or  property  of  a  special  char- 
acter, like  lands  under  navigable  waters; 
they  cannot  be  placed  entirely  beyond  the 
direction  and  control  of  the  state. 

The  harbor  of  Chicago  is  of  immense  value 
to  the  people  of  the  state  of  Illinois,  in  the 
facilities  it  affords  to  its  vast  and  constantly 
increasing  commerce:  and  the  idea  that  its 
legislature  can  deprive  the  state  of  control 
over  its  bed  and  waters,  and  place  the  same 
in  the  hands  of  a  private  corporation,  created 
for  a  different  purpose, — one  limited  to 
transportation  of  passengers  and  freight  be- 
tween distant  points  and  the  city, — is  a  prop- 
osition tliat  cannot  be  defended. 

The  area  of  the  submerged  lands  proposed 
to  be  ceded  by  the  act  in  question  to  tlie  rail- 
road company  embraces  something  more  than 
1,000  acres,  being,  as  stated  by  counsel,  more 
than  three  times  the  area  of  the  outer  har- 
bor, and  not  only  including  all  of  that  har- 
bor, but  embracing  adjoining  submerged 
lands,  which  will,  in  all  probability,  be  here- 
after included  in  the  harbor.  It  is  as  large 
as  that  embraced  by  all  the  merchandise 
docks  along  the  Tl.amesat  London;  is  much 
larger  than  tiiat  included  in  the  famous 
docks  and  basins  at  Liverpool;  is  twice  that 
of  the  ])ort  of  Marseilles,  and  nearly,  if  not 
quite,  equal  to  the  pier  area  along  the  water 
front  of  the  city  of  New  York.  And  the  ar- 
rivals and  clearings  of  vessels  at  the  port  ex- 
ceed in  number  those  of  New  York,  and  are 
equal  to  those  of  New  York  and  Boston  com- 
bined. Chicago  has  nearly  25  per  cent,  of 
tiie  lake  carrying  trade,  as  compared  with 
the  arrivals  and  clearings  of  all  the  leading 
ports  of  our  great  inland  seas.  In  the  year 
ending  -June  30,  1886,  the  joint  arrivals  and 
clearances  of  vessels  at  that  port  amounted 
to  22,096,  with  a  tonnage  of  over  7,000.000; 
and  in  1890  the  tonnage  of  the  vessels  reached 
nearly  9,000,000.  As  stated  by  counsel, 
since  the  passage  of  the  lake  front  act,  in 
1869,  the  population  of  the  city  has  increased 
nearly  1,000,000  souls,  and  the  increase  of 
commerce  has  kept  pace  with  it.  It  is  hard- 
ly conceivable  that  the  legislature  can  divest 
the  state  of  the  control  and  management  of 
this  harbor,  and  vest  it  absolutely  in  a  pri- 
vate corporation.  Surely  an  act  of  the  legis- 
lature transferring  the  title  to  its  submerged 
lands  and  the  power  claimed  by  the  railroad 
company  to  a  foreign  state  or  nation  would 
be  repudiated,  without  hesitation,  as  a  gross 
perversion  of  the  trust  over  the  property  un- 


der wliich  it  is  held.  So  would  a  similar 
transfer  to  a  corporation  of  another  state. 
It  would  not  be  listened  to  tliat  the  control 
and  management  of  the  harbor  of  tliat  great 
city — a  subject  of  concern  to  the  whole  peo- 
ple of  the  state — should  tlius  be  placed  else- 
where than  in  the  state  itself.  All  the  ob- 
jections which  can  be  urged  to  sucli  at- 
tempted transfer  may  be  urged  to  a  transfer 
to  a  private  corporation  like  the  railroad 
company  in  this  case. 

Any  grant  of  the  kind  is  necessarily  rev- 
ocable, and  the  exercise  of  the  trust  by 
which  the  property  was  held  by  the  state  can 
be  resumed  at  any  time.  Undoubtedly  there 
may  be  expenses  incurred  in  improvements 
made  under  such  a  grant,  which  the  state 
ought  to  pay;  but,  be  that  as  it  may,  ilie 
power  to  resume  the  trust  whenever  the 
state  judges  best  is,  we  think,  incontroverti- 
ble. The  position  advanced  by  the  railroad 
company  in  support  of  its  claim  to  the  own- 
ership of  the  submerged  lands,  and  the  right 
to  the  erection  of  wharves,  piers,  and  docks 
at  its  pleasure,  or  for  its  business  in  the  har- 
bor of  Chicago,  would  place  every  harbor  in 
the  country  at  the  mercy  of  a  majority  of  the 
legislature  of  the  state  in  which  the  harbor  is 
situated. 

We  cannot,  it  is  true,  cite  any  authority 
where  a  grant  of  this  kind  has  been  held  in- 
valid, for  we  believe  that  no  instance  exists 
where  the  harbor  of  a  great  city  and  its  com- 
merce have  been  allowed  to  pass  into  the 
control  of  any  private  corporation.  But  the 
decisions  are  numerous  which  declare  tiiat 
such  property  is  held  by  the  state,  by  virtue 
of  its  sovereignty,  in  trust  for  the  public. 
The  ownership  of  the  navigable  waters  of 
the  harbor,  and  of  the  lands  under  them,  is 
a  subject  of  public  concern  to  the  whole  peo- 
ple of  the  state.  The  trust  with  which  they 
are  held,  therefore,  is  governmental,  and  can- 
not be  alienated,  except  in  tiiose  instances 
mentioned,  of  parcels  used  in  the  inipiove- 
ment  of  the  interest  thus  held,  or  when  par- 
cels can  be  disposed  of  without  detriment  to 
the  public  interest  in  the  lands  and  waters 
remaining, 

This  follows  necessarily  from  the  public 
character  of  the  property,  being  held  by  the 
whole  people  for  purposes  in  which  the  whole 
people  are  interested.  As  said  by  Chief  Jus- 
tice Taney  in  Martin  v.  Waddell,  16  Pet. 
367,  410:  "When  the  Revolution  took  place 
the  peoi)le  of  each  state  became  themselves 
sovereign,  and  in  that  character  hold  the  ab- 
solute right  to  all  their  navigable  waters,  and 
the  soils  under  them,  for  their  own  common 
use,  subject  only  to  the  rights  since  surren- 
dered by  the  constitution  to  the  general  gov- 
ernment." In  Arnold  v.  Mundy,  6  N.  J. 
Law,  1,  which  is  cited  by  this  court  in  Mar- 
tin V.  Waddell,  16  Pet.  418,  and  spoken  of 
by  Chief  Justice  Taney  as  entitled  to  great 
weight,  and  in  which  the  decision  was  made 
"with  great  deliberation  and  research,"  the 
supreme  court  of  New  Jersey  comments  upon 
the  rights  of  the  state  in  the  bed  of  naviga- 


i^ 


WHAT  IS  KEAL  PROPERTY. 


ble  waters,  and,  after  observing  that  the 
power  exercised  by  the  state  over  tlie  lands  and 
waters  is  notliing  more  than  wliat  is  called 
the  "jus  reglum,"  the  right  of  regulating, 
improving,  and  securing  them  for  the  benefit 
of  every  individual  citizen,  adds:  "The  sov- 
ereign jjower  itself,  tiierefore,  cannot,  consist- 
ently with  the  prlnci[iles  of  the  law  of  nature 
and  the  constitution  of  a  well-ordered  soci- 
ety, make  a  direct  and  absolute  grant  of  the 
waters  of  tiie  state,  divesting  all  the  citizens 
of  tiieir  common  right.  It  would  be  a  griev- 
ance which  never  could  be  long  borne  by  a 
free  people."  Necessarily  must  the  control 
of  the  waters  of  a  state  over  all  lands  under 
them  pass  when  the  lands  are  conveyed  in 
fee  to  private  parties,  and  are  by  them  sub- 
jected to  use. 

In  the  case  of  Stockton  v.  Railroad  Co.,  32 
Fed.  Rep.  9,  which  involved  a  consideration 
by  Mr.  Justice  IJradley,  late  of  this  court,  of 
the  nature  of  the  ownership  by  the  state  of 
lands  under  the  navigable  waters  of  the 
United  States,  he  said: 

"It  is  insisted  that  the  property  of  the  state 
in  lands  under  its  navigable  waters  is  pri- 
vate property,  and  comes  strictly  within  the 
constitutional  provision.  It  is  signilicantly 
asked,  can  the  United  States  take  the  state 
house  at  Trenton,  and  the  surrounding 
grounds  belonging  to  the  state,  and  appro- 
priate them  to  the  purposes  of  a  railroad 
depot,  or  to  any  other  use  of  the  general  gov- 
ernment, without  compensation  ?  We  do  not 
apprehend  that  the  decision  of  the  present 
case  involves  or  requiies  a  serious  answer  to 
this  question.  The  cases  are  clearly  not  par- 
allel. The  character  of  the  title  or  owner- 
ship by  which  the  state  holds  the  state  house 
is  quite  different  from  that  by  wiiich  it  holds 
the  land  under  the  navigable  waters  in  and 
around  its  territory.  The  information  right- 
ly states  that  prior  to  the  Revolution  the 
shore  and  lands  under  water  of  the  naviga- 
ble streams  and  waters  of  the  province  of 
New  Jersey  belonged  to  tlie  king  of  Great 
Britain,  as  part  of  the  jura  regalia  of  the 
crown,  and  devolved  to  the  state  by  right  of 
conquest.  The  infnimulion  does  not  state, 
however,  what  is  equally  true,  that  after  the 
conquest  the  said  lands  were  held  by  the 
state,  as  they  were  by  the  king,  in  trust  for 
the  public  uses  of  navigation  and  fishery,  and 
the  erection  Ihereon  oi  wharves,  piers,  light- 
houses, beacons,  and  other  facilities  of  navi- 
gation and  commerce.  Being  subject  to  this 
trust,  they  were  public!  juris;  in  otlier  words, 
they  were  held  for  the  use  of  the  people  at 
large.  It  is  true  that  to  utilize  the  fisheries, 
especially  those  of  shell  fish,  it  was  necessary 
to  parcel  them  out  to  particular  operators, 
and  employ  the  rent  or  consideration  for  the 
benefit  of  the  whole  people;  but  this  did  not 
alter  the  character  of  the  title.  The  land  re- 
mained subject  to  all  other  public  uses  as 
before,  especially  to  those  of  navigation  and 
commerce,  which  are  always  paramount  to 
those  of  public  fisheries.  It  is  also  true  that 
portions  of  the  submerged  shoals  and  flats, 


which  really  interfered  with  navigation,  and 
could  better  subserve  the  purposes  of  com- 
merce by  being  filled  up  and  reclaimed,  were 
disposed  of  to  individuals  for  that  jiurpose. 
But  neither  did  these  dispositions  of  useless 
parts  affect  the  character  of  the  title  to  the 
remainder." 

Many  other  cases  might  be  cited  where  it 
has  been  decided  that  the  bed  or  soil  of  nav- 
igable waters  is  held  by  the  people  of  tha 
state  in  their  character  as  sovereign  in  trust 
for  public  uses  for  which  they  are  adantcd. 
Martin  v.  Waddell,  16  Pet.  367,  41U;' Pol- 
lard's Lessee  v.  IIa^^an,  3  How.  212,  220; 
McCready  v.  Virginia,  94  U.  S.  391,  394. 

In  People  v.  Ferry  Co.,  68  N.  Y.  71,  76. 
the  court  of  appeals  of  New  York  saic' : 

"The  title  to  lands  under  tide  waters,  with- 
in the  realm  of  England,  were  by  the  com- 
mon law  deemed  to  be  vested  in  the  king  as 
a  public  trust,  to  subserve  and  protect  the 
public  right  to  use  them  as  common  high- 
ways for  commerce,  trade,  and  intercourse. 
The  king,  by  virtue  of  his  proprietary  inter- 
est, could  grant  the  soil  so  that  it  should  be- 
come private  property,  but  his  grant  was 
subject  to  the  paramount  right  of  public  use 
of  navigable  waters,  which  he  could  neitlicr 
destroy  nor  abridge.  In  every  such  grant 
there  was  an  implied  reservation  of  the  pub- 
lic right,  and  so  far  as  it  assumed  to  inter- 
fere with  it,  or  to  confer  a  right  to  impede 
or  obstruct  navigation,  or  to  make  an  exclu- 
sive appropriation  of  the  use  of  navigable 
waters,  the  grant  was  void.  In  his  treatise 
De  Jure  Maris  (page  22)  Lord  Hale  says: 
•The  jus  privatum  that  is  acquired  by  the 
subject,  either  by  patent  or  prescription, 
must  not  prejudice  the  jus  publicum,  where- 
with public  rivers  and  the  arms  of  the  sea 
are  affected  to  public  use.'  And  Mr.  Justice 
Best,  in  Blundell  v.  Catterall,  5  Barn.  &  Aid. 
268,  in  speaking  of  the  subject,  says:  'The 
soil  can  only  be  transferred  subject  to  the 
public  trust,  and  general  usage  shows  that 
the  public  right  has  been  excepted  out  of  the 
grant  of  the  soil.'     *     *     * 

"The  principle  of  the  common  law  to  which 
we  have  adverted  is  founded  upon  the  most 
obvious  principles  of  public  policy.  The  sea 
and  navigable  rivers  are  natural  highways, 
and  any  obstruction  to  the  common  right,  or 
exclusive  appropriation  of  their  use,  is  inju- 
rious to  commerce,  and,  if  permitted  at  the 
will  of  the  sovereign,  would  be  very  likely  to 
end  in  materially  crippling,  if  not  destroy- 
ing, it.  The  laws  of  most  nations  have  sed- 
ulously guarded  the  public  use  of  navigable 
waters  within  their  limits  against  infringe- 
ment, subjecting  it  only  to  such  regulation 
by  the  state,  in  the  interest  of  the  public,  as 
is  deemed  consistent  with  the  preservation  of 
the  public  right." 

While  the  opinion  of  the  New  York  court 
contains  some  expressions  which  may  require 
explanation  when  detached  from  the  particu- 
lar facts  of  that  case,  the  general  observations 
we  cite  are  just  and  pertinent. 

The  soil  under  navigable  waters  being  held 


RirAKIAN   rnOPlUETORS. 


23 


by  the  people  of  the  state  in  trust  for  the 
common  use  and  as  a  portion  of  tlieir  inherent 
sovereignty,  any  act  of  legislation  cuncern- 
ing  their  use  affects  the  puhlic  welfare.  It 
is  theiel'ore  appropriately  witliin  the  exercise 
of  tlie  police  power  of  tiie  state. 

In  Kewton  v.  Commissioners,  100  U.  S. 
548,  it  appeared  that  by  an  act  passed  by  the 
le^'isiature  of  Ohio  in  181G  it  was  provided 
that  upon  thefullillment  of  certain  conditions 
by  the  proprietors  or  citizens  of  the  town  of 
Canlield  tiie  county  seat  should  bo  perma- 
nently established  in  that  town.  Those 
comiitions  having  been  complied  with,  the 
county  seat  was  esiabiished  therein  accord- 
ingly. In  1874  the  legislature  passed  an 
act  for  tlie  removal  of  the  county  seat  to  an- 
other town.  Certain  citizens  of  Can  Held 
thereupon  filed  their  bill  setting  forth  the 
act  of  1846,  and  claiming  that  the  proceed- 
ings constituted  an  executed  contract,  and 
prayed  for  an  injunction  against  the  contem- 
plated removal.  But  the  court  refused  the 
injunction,  holding  that  there  could  be  no 
contract  and  no  irrepealable  law  upon  gov- 
ernmental subjects,  observing  that  legisla- 
tive arts  concerning  public  interests  are  nec- 
essarily public  laws;  that  every  succeeding 
leg  slature  possesses  the  same  jurisdiction 
and  power  as  its  predecessor;  that  the  latter 
have  the  same  power  of  repeal  and  modifica- 
tion which  the  former  had  of  enactment, — 
neither  more  nor  less;  that  all  occupy  in 
this  respect  a  footing  of  perfect  equality; 
that  this  is  necessarily  so,  in  the  nature  of 
things;  that  it  is  vital  to  the  public  welfare 
that  each  one  should  be  able  at  all  times  to 
do  whatever  the  varying  circumstances  and 
present  exigencies  attending  the  subject 
may  require;  and  that  a  different  result 
would  be  fraught  with  evil. 

As  counsel  observe,  if  this  is  true  doctrine 
as  to  the  location  of  a  county  seat,  it  is  ap- 
parent that  it  must  apply  with  greater  force 
to  the  control  of  the  soils  and  beds  of  navi- 
gable waters  in  the  great  public  harbors  held 
by  the  people  in  trust  for  their  common  use 
and  of  common  right,  as  an  incident  to  their 
sovereignty.  The  legislature  could  not  give 
away  nor  sell  the  discretion  of  its  successors 
in  respect  to  matters,  the  government  of 
which,  fiom  the  very  nature  of  things,  must 
vary  with  varying  circumstances.  The  leg- 
islation which  may  be  needed  one  day  for 
the  harbor  may  be  different  from  tlie  legis- 
lation that  may  be  required  at  anotiier  day. 
Every  legislature  must,  at  the  time  of  its  ex- 
istence, exercise  the  power  of  the  state  in 
the  execution  of  the  trust  devolved  upon  it. 
We  hold,  therefore,  that  any  attempted 
cession  of  the  ownership  and  control  of  the 
state  in  and  over  the  submerged  lands  in 
Lake  ^lichigan,  by  the  act  of  April  16,  1869, 
was  inoperative  to  affect,  modify,  or  in  any 
respect  to  control  the  sovereignty  and  do- 
minion of  the  state  over  the  lands,  or  its 
ownership  thereof,  and  that  any  such  at- 
tempted operation  of  the  act  was  annulled 
by  the  repealing  act  of  April  15,  1873,  which 


to  that  extent  was  valid  and  etfoctive. 
There  can  be  no  irrepealable  contract  in  a 
conveyance  of  property  by  a  grantor  in  dis- 
regard of  a  public  trust,  under  which  he  was 
bound  to  hold  and  manage  it. 

Tiie  legislation  of  tlie  state  in  the  lake 
front  act,  purporting  to  grant  the  fee  of  the 
submerged  lands  mentioind  to  the  railroad 
company,  was  considered  by  tlie  court  be- 
low, in  view  of  the  preceding  measures 
taken  for  the  improvement  of  the  harbor, 
and  because  further  improvement  in  the 
same  direction  was  contemplated,  as  a  mere 
license  to  the  company  to  prosecute  such  fur- 
ther improvement  as  an  agency  of  tiie  state, 
and  that  to  this  end  the  state  has  placed  certain 
of  its  resources  at  the  command  of  the  com- 
pany,  with  such  an  enlargement  of  its  pow- 
ers and  privileges  as  enabled  it  to  accomplisii 
the  objects  in  view;  and  the  court  below, 
after  observing  that  the  act  mi^ht  be  as- 
sumed as  investing  the  railroad  company 
with  the  power,  not  given-  in  its  original 
charter,  of  erecting  and  maintaining  wharves 
docks,  and  piers  in  the  interest  of  commerce, 
and  beyond  the  necessities  or  legitimate  pur- 
poses of  its  own  business  as  a  railioa  i  cor- 
poration, added  that  it  was  unable  to  per- 
ceive why  it  was  not  competent  for  the 
state,  by  subsequent  legislation,  to  repeal 
the  act  and  withdraw  the  additional  powers 
of  the  company,  thereby  restricting  it  to  the 
business  for  which  it  was  incorporated,  and 
to  resume  control  of  the  resources  and  prop- 
erty which  it  had  placed  at  the  command  of 
the  company  for  the  improvement  of  the 
harbor.  The  court,  treating  the  act  as  a  li- 
cense to  the  company,  also  observed  that  it 
was  deemed  best,  when  that  act  was  passed, 
for  the  public  interest,  that  the  improvement 
of  the  harbor  should  be  effected  by  the  in- 
strumentality of  a  railroad  corporation  in- 
terested to  some  extent  in  the  accomplish- 
ment of  that  result,  and  said: 

"But  if  the  state  subsequently  determined, 
upon  consideration  of  public  policy,  that  this 
great  work  should  not  be  intrusted  to  any 
railroad  corporation,  and  that  a  corporation 
should  not  be  the  owner  of  even  a  qualified 
fee  in  the  soil  under  the  navigable  waters  of 
the  harbor,  no  provision  of  the  national  or 
state  constitution  forbade  the  general  assem- 
bly of  Illinois  from  giving  effei  t  by  legisla- 
tion to  this  change  of  policy.  It  cannot  be 
claimed  that  the  repeal  of  the  act  of  1869  took 
from  the  company  a  single  right  conferred 
upon  it  by  its  original  charter.  That  act  only 
granted  additional  powers  and  privileges,  for 
which  the  railroad  company  paid  nothing,  al- 
though, in  consideration  of  the  grant  of  such 
add.tional  powers  and  privileges,  it  agreed  to 
pay  a  certain  per  centum  of  the  gross  pro- 
ceeds, receipts,  and  incomes  which  it  might 
derive  either  from  the  lands  granted  by  the 
act,  or  from  any  improvements  erected  there- 
on. But  it  was  not  absolutely  bound,  by 
anything  contained  in  the  act,  to  make  use 
of  the  submerged  lauds  for  the  purposes  con- 
templated by  the  legislature, — certainly  not 


24 


^^'IIAT  IS  REAL  PROPERTY. 


within  any  given  time, — and  could  not  have 
been  c;illed  upon  to  pay  such  per  centum  un- 
til after  the  lands  were  used  and  iinpi-oved, 
and  income  derived  therefrom.  The  repeal 
of  the  act  relieved  the  corporation  from  any 
obligation  to  pay  the  per  centum  refen-ed  to, 
because  it  had  the  effect  to  take  from  it  the 
properly  from  which  alone  the  contemplated 
income  could  be  derived.  So  tliat  the  effect 
of  tiie  act  of  1873  was  only  to  remit  the  rail- 
road company  to  the  exercise  of  the  powers, 
privileges,  and  franchises  granted  in  its  orig- 
inal charter,  and  withdraw  from  it  the  addi- 
tional powers  given  by  the  act  of  1869  for  the 
accomplishment  of  certain  public  objects." 
If  the  act  in  question  be  treated  as  a  mere 
license  to  the  company  to  mTike  the  improve- 
ment in  the  harbor  contemplated  as  an  agency 
of  the  state,  then  we  think  the  right  to  can- 
cel the  agency  and  revoke  its  power  is  unques- 
tionable. 

It  remains  to  consider  the  claim  of  the  city 
of  Chicago  to  portions  of  the  east  water  front, 
and  how  such  claim,  and  the  rights  attached 
to  it,  are  interfered  with  by  the  railroad  com- 
pany. 

Tiie  claim  of  the  city  is  to  the  ownership 
in  fee  of  the  streets,  alleys,  ways,  commons, 
and  other  public  grounds  on  the  east  front 
of  ti>e  city  bordering  on  the  lake,  as  exhibited 
on  the  maps  showing  the  subdivision  of  frac- 
tional sections  10  and  15,  prepared  under  the 
supervision  and  direction  of  United  ^states  of- 
ficers in  the  one  case,  and  by  the  canal  com- 
missioners in  the  otiier,  and  duly  recorded, 
and  the  riparian  rights  attached  to  such  own- 
ersiiip.  By  a  statute  of  Illinois  the  making, 
acknowledging,  and  recording  of  tiie  plats 
operated  to  vest  the  title  to  the  streets,  alleys, 
ways,  and  commons,  and  other  public  grounds 
designated  on  such  plats,  in  ilie  city,  in  trust 
for  the  public  uses  to  vvhicii  they  were  appli- 
cable. Trustees  v.  Havens,  11  III.  556;  Chi- 
cago v.  Rumsey,  87  III.  354. 

Such  property,  besides  other  parcels,  in- 
cluded the  whole  of  that  portion  of  fractional 
section  15  which  constitutes  Michigan  ave- 
nue, and  that  part  of  the  fractional  section 
lying  east  of  the  west  line  of  Michigan  ave- 
nue, and  that  portion  of  fractional  section  10 
designated  on  one  of  the  plats  as  "Public 
Ground,"  which  was  always  to  remain  open 
and  free  from  any  buildings. 

The  estate,  real  and  personal,  held  by  the 
trustees  of  the  town  of  Chicago,  was  vested 
in  the  city  of  Chicago  by  the  act  of  March  4, 
1837.  It  followed  that  W'hen  the  lake  front 
act  of  1869  was  passed  the  fee  was  in  the 
city,  subject  to  the  public  uses  designated,  of 
all  the  portions  of  sections  10  and  15  partic- 
ularly described  in  the  decree  below.  And 
we  agree  with  the  court  below  that  the  fee 
of  the  made  or  reclaimed  ground  between 
Randolph  street  and  Park  row,  embracing  the 
ground  upon  which  rest  the  tracks  and  the 
breakwater  of  the  railroad  company  south  of 
Randolpli  street,  was  in  the  city.  The  fact 
that  tlie  land  which  the  city  had  a  right  to 
fill  in  and  appropriate  by  virtue  of  its  owner- 


ship of  the  grounds  in  front  of  the  lake  had 
been  filled  in  by  the  railroad  company  in  tlie 
construction  of  the  tracks  for  its  railroad  and 
for  the  breakwater  on  the  shore  westof  itdid 
not  deprive  the  city  of  its  riparian  rights. 
The  exercise  of  those  rights  was  onlysubject 
to  the  condition  of  the  agreement  with  the 
city  under  which  the  tracks  and  breakwater 
were  constructed  by  tlie  railroad  comjiany, 
and  tliat  was  for  a  perpetual  right  of  way  over 
the  ground  for  its  tracks  of  railway,  and,  nec- 
essarily, the  continuance  of  the  breakwater  as 
a  protection  of  its  works  and  the  shore  from 
the  violence  of  the  lake.  With  tliis  reserva- 
tion of  the  right  of  the  railroad  company  to 
its  use  of  the  tracts  on  ground  reclaimed  by 
it  and  the  continuance  of  the  breakwater,  the 
city  possesses  the  same  right  of  riparian  own- 
ership, and  is  at  full  liberty  to  exercise  it, 
which  it  ever  did. 

We  also  agree  with  the  court  below  that 
the  city  of  Chicago,  as  riparian  owner  of  the 
grounds  on  its  east  or  lake  front  of  the  city, 
between  the  north  line  of  Randolph  street 
and  the  north  line  of  block  23,  each  of  the 
lines  being  produced  to  Lake  Michigan,  and 
in  virtue  of  authority  conferred  by  its  charter, 
has  the  power  to  construct  and  keep  in  re- 
pair on  the  lake  front,  east  of  said  premises, 
within  the  lines  mentioned,  public  landing 
places,  wharves,  docks,  and  levees,  subject, 
however,  in  the  execution  of  that  power,  to 
tlie  authority  of  the  state  to  prescribe  the 
lines  beyond  which  piers,  docks,  wharves, 
and  other  structures,  other  than  those  erected 
by  the  general  government,  may  not  be  ex- 
tended into  the  navigable  waters  of  the  harbor, 
and  to  such  supervision  and  control  as  the 
United  States  may  rightfully  exercise. 

It  follows  from  the  views  expressed,  and  it 
is  so  declared  and  adjudged,  that  the  state  of 
Illinois  is  the  owner  in  fee  of  the  si-b:iiei;.^ed 
lands  constituting  the  bed  of  Lake  Michigan, 
which  the  third  section  of  the  act  of  April 
16,  1869,  purported  to  grant  to  the  Illinois 
Central  Railroad  Company,  and  tliat  tlie  act 
of  April  15,  1873,  repealing  the  same,  is  valid 
and  effective  for  the  purpose  of  restoring  to 
the  state  the  same  control,  dominion,  and 
ownership  of  said  lands  that  it  had  prior  to 
the  passage  of  the  act  of  April  16,  1869. 

But  the  decree  below,  as  it  respects  the 
pier  commenced  in  1872,  and  the  piers  com- 
pleted in  1880  and  1881,  marked  1,  2,  and  3, 
near  Chicago  river,  and  the  pier  and  docks 
between  and  in  front  of  Twelfth  and  Six- 
teenth streets,  is  modified  so  as  to  direct  the 
court  below  to  order  such  investigation  to  be 
made  as  may  enable  it  to  determine  whether 
those  piers  erected  by  the  company,  by  virtue 
of  its  riparian  proprietorship  of  lots  formerly 
constituting  part  of  section  10,  extend  into 
the  lake  beyond  the  point  of  practical  navi- 
gability, having  reference  to  the  manner  in 
which  commerce  in  vessels  is  conducted  on 
the  lake,  and  if  it  be  determined  upon  such 
investigation  that  said  piers,  or  any  of  them, 
do  not  extend  beyond  such  point,  then  that 
the  title  and  possession  of  the  railroad  com- 


RIPARIAN  PROPRIETORS. 


25 


pany  to  such  piers  shall  be  affirmed  by  the 
court;  but  if  it  be  ascertained  and  determined 
that  audi  piers,  or  any  of  tiiera,  do  extend 
beyond  sucii  navigable  point,  then  the  said 
court  shall  direct  the  said  pier  or  piers,  to 
the  excess  ascertained,  to  b?  abated  and  re- 
moved, or  that  other  proceedings  relating 
thereto  be  taken  on  the  appliciition  of  the 
state  as  may  be  authorized  by  law,  and  also 
to  order  that  similar  proceedings  be  fallen  to 
ascertain  and  determine  wiiether  or  not  tlie 
pier  and  dock  constructed  hy  the  railroad 
company  in    front    of    the    shore  between 


Twelfth  and  Sixteenth  streets  extend  beyond 
the  point  of  navigability,  and  to  affirm  the 
title  and  possession  of  the  company  if  they 
do  not  extend  beyond  such  point,  and,  if  they 
do  extend  beyond  such  point,  to  order  the 
abatement  and  removal  of  the  excess,  or  that 
othei-  jiroceedings  relating  thereto  be  taken 
on  application  of  the  state  as  may  be  author- 
ized by  law.  Except  as  modified  in  the  par- 
ticulars mentioned,  the  decree  in  each  of  the 
thiee  cases  on  appeal  must  be  affirmed,  with 
costs  against  the  railroad  company,  and  it  is 
so  ordered. 


26 


VS'HAT  IS  KEAL  PKOPEKTY. 


HOWE  V.  ANDREWS. 

(26  Atl.  394,  62  Conn.  398.) 

Supreme  Court  of  Errors  of  Connecticut.     Dec. 
6,  1892. 

Appeal  from  superior  court,  Tolland  coun- 
ty;  Fenn,  Judge. 

Action  by  Emily  M.  Howe  against  Wil- 
liam R.  Andrews  to  recover  damages  for  tak- 
ing ice  from  plaintiff's  millpond.  From  a 
judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 

E.  B.  Sumner  and  H.  Clark,  for  appellant. 
G.  A.  Conant  and  J.  T.  Lyncli,  for  appellee. 

THAYER,   J.     The  plaintiff  owns  a  grist- 
mill   and    sawmill    situated    upon    lier    own 
land,  and  to  supply  water  for  operating  the 
mills  maintains  a  dam  upon  lands  owned  by 
the  defendant  and  others,  and  thereby  sets 
back  the  water  of  a  small  stream,  creating  a 
shallow  pond,  Avhich  covers  about  3%  acres 
of  their  land.     The  dehndant  took  and  car- 
ried away  for  mercantile  purposes  ice  formed 
upon  the  pond,  and  to  facilitate  such  taking 
and  removal  drove  teams  over  the  earthwork 
of  the  dam,   and  set  wooden  posts   therein. 
Upon  the  trial  to  the  jury  the  defendant's  ti- 
tle to  any  of  the  laud  flowed  was  disputed 
by  the  plaintiff",  and  the  plaintiff's  right  to 
use  the  ponded  .water  for  the  purposes  of  the 
sawmill  was  denied  by  the  defendant;    but 
for  the  purposes  of  the  present  consideration 
it  may  be  assumed  that  the  plaintiff  had  the 
right  to  maintain  her  dam  and  use  the  water 
of  the  pond  for  both  of  her  mills,  and  that 
the  defendant  had  the  title  to  the  land  flow- 
ed.    Each  partj'  upon  the  trial  claimed  the 
absolute  ownership  of  the  ice  formed  upon 
the  pond;    the  plaintiff   as   incident   to   her 
right  of  pondage,  the  defendant  as  incident 
to  his  right  to  the  soil.     The  chief  questions 
raised  by  the  appeal  relate  to  the  correct- 
ness of  the  judge's  charge  as  given,  and  of 
his  refusal  to  charge  as  requested,  touching 
the  defendant's  right  to  the  ice.     Every  own- 
er of  land  through  which  a  stream  of  water 
runs  has  ordinarily  a  right  to  the  use  of  the 
water  of  the  stream  as  it  is  wont  to  run. 
This  right  may,  however,  be  parted  with.    A 
lower  proprietor  may  by  purchase,  adverse 
user,    or  by   proceedings   under   the   flowage 
act,  acquire  the  right  to  dam  the  stream,  and 
set  back  the  water  upon  the  land  of  the  pro- 
prietor  above,   and   to   use   the   water   thus 
ponded  in  various  ways  and  for  various  pur- 
poses.    Unless  the  upper  proprietor  has  part- 
ed with  or  lost  his  right  to  so  use  the  water 
of  the  stream,  he  may  doubtless  use  it  for 
domestic    purposes,    and    for    watering    his 
stock   and   irrigating   his   land,    although    it 
has  been  thus  ponded.     He  may  make  any 
use  of  it  not  inconsistent  with  the  original 
or  acquired  rights  of  the  owner  below,— any 
use  which  works  no  actual  and  perceptible 
injury  to  his  rights.     When  one  has  acquired 
the  right  to  flow  the  lands  of  another  for  mill 
purposes  only,  the  latter  has  not  the  right, 


as  matter  of  law,  to  take  and  use  for  mer- 
cantile purposes  the  ice  formed  upon  the  pond 
over  his  land.  This  was  expressly  decided 
in  Manufacturing  Co.  v.  Smith,  34  Conn.  462. 
When  such  removal  will  cause  a  material  in- 
jury to  the  pond  owner  in  his  use  of  the  wa- 
ter for  his  mill,  it  may  not  be  removed. 
Whether  it  will  so  injure  him  depends  upon 
the  facts  and  circumstances  of  each  particu- 
lar case,  and  the  question  must  be  determined 
by  the  trior. 

The   defendant  in  his  first   and  third   re- 
quests asked  the  court  in   effect  to   charge 
without  qualification  that  the  ice  upon  the 
pond  belonged  to  the  defendant  as  owner  of 
the  soil,  and  in  the  fifth  request  to  charge 
that,  as  owner  of  the  soil,  the  defendant  had 
the  absolute  right  to  remove  the  ice  from  the 
pond.     The  court  correctly  refused  to  charge 
as  thus  requested.     The  court  instructed  the 
jury  that  the  plaintiff",  as  owner  of  the  pond- 
age right,  was  not  the  absolute  owner  of  the 
ice  formed  upon  the  pond,  but  that  she  had 
the  right  to  have  the  ice  remain  upon  the 
pond  so  long  as  and  whenever  such  continu- 
ance would  be  useiul  to   her  in  the  legiti- 
mate exercise  of  her  right  to  use  the  water 
as   motive  power  for   her   mills;    and   that, 
subject  to  this  right,  and  only  subject  to  it. 
the  defendant,  as  owner  of  the  soil,  might 
make  such  use  of  the  ice  as  did  not  interfere 
with   or   injure  the   plaintiff   in   her   rights. 
This  was  a  correct  statement  of  the  law,  and 
a   compliance  with   the  defendant's   second, 
fourth,  sixth,  and  ninth  requests  to  charge,, 
so  far  as  they  were  applicable  to  the  case. 
The    judge,    however,    at   the    close    of    his 
charge,   read   the   defendant's   requests,    the 
ninth  and  fourth,  with  comments  as  follows: 
"  'Every  proprietor  of  land  through  which  a 
natural  water  course  runs  has  an  equal  right 
to  the  use  of  it  for  every  useful  purpose  to 
which  it  can  be  applied,  as  it  is  wont  to  run, 
without  diminution  or  alteration;    and  a  di- 
minution of  the  water  by  a  riparian  proprie- 
tor is  not  a  violation  of  an  adjoining  or  down- 
stream   proprietor's    rights,    unless    such    di- 
minution is  an  actual  injux-y  to  such  adjoin- 
ing or  down-stream  proprietor.'     Now,  gen- 
tlemen, this  request,  while  generally  speak- 
ing, correct,  should,  as  applied  to  this  case, 
be   taken  with    certain  limitations,   which   I 
have  already  explained  to  you.     Subject  to 
those  limitations  which  I  have  already  given 
to  you,  I  charge  the  same  to  be  the  law  of 
the  case;    and  also,  subject  to  a  like  limita- 
tion, I  charge  you,  as  further  requested  by 
the   defendant,    'that   the    defendant   has    a 
right  to  use  the  water  of  the  pond  for  wa- 
tering his  cattle,  irrigating  his  lands,  for  do- 
mestic   purposes,    and    for    any    reasonable 
profit  or  advantage,  which  does  not.  In  a  per- 
ceptible or  substantial  degree,  impair  the  op- 
eration of  the  plaintiff's  mill.'  "     The  defend- 
ant insists  that  by  attaching  the  limitation 
referred  to  the  court  in  fact  refused  to  charge 
as  requested.— "that  the  defendant,  as  owner 
of  the  soil,  might  use  the  ice  upon  the  pond 


lilPAIilAX   PKUl'lilETOKS. 


27 


for  any  reasonable  profit  or  advantage  which 
did  not  in  a  perceptible  and  substantial  de- 
gree impair  the  operation  of  the  plaintiff's 
mill."  While,  generally  speaking,  the  ninth 
request  is  a  correct  siatemLUt  of  the  law,  if 
given  without  limitation  it  would  leave  the 
jury  to  understand  that  in  the  present  case 
the  taking  of  the  ice  was  not  a  violation  of 
the  plaintiff's  rights  if  slie  still  liad  the  use 
of  the  stream  as  it  was  wont  to  how.  The 
court  had  already  instructed  the  jury  that, 
if  the  plaintiff  had  the  right  to  pond  the  wa- 
ter for  mill  purposes,  she  had  the  right  to 
have  the  ice  remain  upon  the  pond  so  long  as 
and  whenever  its  continuance  would  be  use- 
ful to  her  in  the  operation  of  her  mills,  and 
that  the  defendant,  in  his  use  of  the  water, 
was  subject  to  tliis  right  of  the  plaintiff. 
The  court  was  correct  in  keeping  this  limita- 
tion of  the  defendant's  right  in  view,  and  in 
applying  the  law  of  the  request  to  the  facts 
of  the  case  in  hand.  And  the  same  may  be 
said  regarding  the  like  limitation  of  the 
fourth  request. 

Several  reasons  of  appeal  are  based  upon 
that  portion  of  the  charge  wherein  the  jury 
were  told  that  the  defendant  might  become 
liable  for  implied  damages  '"by  the  doing  un- 
der a  claim  of  right,  and  without  the  license 
and  consent  of  the  plaintiff  of  acts  done  per- 
sistently in  defiance  and  disregard  of  her 
rights,  regardless  of  whether  they  in  fact 
injured  her  or  not,  and  calculated  to  cause 
such  injury,  and  calculated  also,  if  continued, 


to  ripen  into  rights  by  adverse  user,"  and  the 
reading  in  connection  therewith  of  a  portion 
of  the  opinion  in  Parker  v.  Griswold,  17  Conn. 
3U1.  The  jury  were  told  that  the  damages 
in  such  a  case  would  be  merely  nominal  or 
trivial.  A  verdict  was  returned  for  substan- 
tial damages,  and  it  thus  appears  that  the 
jury  must  have  found  an  actual  specific  in- 
jury to  the  plaintiff,  and  the  defendant  has 
not  been  injured  by  this  portion  of  the 
charge.  It  is  therefore  unnecessai-y  to  con- 
sider the  questions  raised  by  these  reasons 
of  appeal. 

The  language  complained  of  in  the  second 
reason  of  appeal  must  be  taken  in  connec- 
tion with  the  words  which  immediately  fol- 
low it.  When  so  taken,  it  is  a  correct  state- 
ment of  facts,  and  was  unexceptionable.  The 
court  was  also  correct  in  constiniing  the  deeds 
which  were  in  evidence,  and  leaving  it  to 
the  jury  to  determine  whether  the  deeds  re- 
ferred to  the  land  in  question. 

Several  other  errors  are  alleged  to  have 
occurred  in  the  charge,  but  as  they  were  not 
much  insisted  on  in  the  argument,  and  mani- 
festly worked  no  injury  to  the  defendant,  it 
is  unnecessary  to  consider  the  questions. 
There  is  no  error  in  the  judgment  appealed 
from. 

ANDREWS,  C.  J.,  and  CARPENTER  and 
TORRANCE,  JJ.,  concurred.  SEYMOUR,  J., 
concurred  in  the  result,  but  died  before  the 
opinion  was  written. 


28 


WHAT  IS  REAL  PROPERTY. 


MASTENBROOK  v.  ALGER. 

(68  N.  W.  213.) 

Supreme  Court  of  Michigan.     July  28,  1896. 

Appeal  from  circuit  court,  Kent  county, 
in  cliancery;    Allen  C.  Adsit,  Judge. 

Bill  by  Jacob  Mastenbrook  against  Frank 
C.  Alger  to  enjoin  a  diversion  of  water  from 
a  stream  for  the  purposes  of  irrigation. 
From  a  decree  as  prayed  by  plaintiff,  de- 
fendant appeals.     Modified. 

Claarles  L.  Wilson  and  Myron  H.  Walker, 
for  appellant  Jolin  M.  Mathewson,  for  ap- 
pellee. 

MOORE,  J.  Complainant  filed  a  bill,  as 
the  lower  proprietor  of  land,  alleging  that 
the  defendant,  who  was  an  upper  proprie- 
tor, had  constructed  a  dam  across  a  water 
way  which  runs  through  complainant's  land, 
the  effect  of  which  was  to  divert  the  water 
from  its  natural  channel  onto  defendant's 
land,  where  it  is  wholly  absorbed,  and  that 
none  of  the  water  is  allowed  to  come  to  the 
land  of  the  complainant.  The  bill  contain- 
ed no  allegation  of  damages,  but  it  did  aver 
that  complainant  has  no  other  running  wa- 
ter on  his  farm  for  his  stock;  that  the 
stream  of  water  runs  near  his  house  and 
barns,  and  is  of  great  benefit  to  him  for  his 
natural  purposes;  that  he  has  the  equitable 
right  to  have  the  water  flow  across  and  up- 
on his  land;  that  he  has  suffered  damages, 
and  has  been  deprived  of  the  equitable  right 
to  the  use  of  the  water  by  defendant;  and  that 
he  is  remediless  at  law.  The  defendant  ad- 
mits that  he  constructed  a  dam  on  his  land, 
but  denies  that  the  dam  prevents  the  flow 
of  any  water  to  the  lower  proprietor,  but 
claims  that  one-half  of  it  was  allowed  to 
flow  to  the  lower  proprietor.  He  claims 
that' his  dam  was  in  substantially  the  same 
place  as  was  a  dam  erected  in  1852  or  18.7)3, 
and  which  had  been  maintained  long  enough 
to  give  him  a  prescriptive  right  to  maintain 
it;  that  one-half  of  the  stream  was  diverted 
by  the  erection  of  the  dam  in  1852  or  1853; 
aud  that  he  now  has  the  right  to  divert  one- 
half  of  the  waters  of  said  stream,  and  use 
them  for  irrigation  or  any  other  purpose. 
There  was  a  large  amount  of  testimony 
taken  in  the  case,  and  Judge  Adsit  made  a 
decree  in  which  he  found  that  the  complain- 
ant was  entitled  to  have  the  stream  of  water 
flow  across  his  land  for  domestic  purposes 
and  stock,  except  as  said  stream  may  be 
lessened  by  the  use  by  defendant  of  water 
for  domestic  purposes  and  stock.  He  fur- 
ther found  that  the  volume  of  water  fur- 
nished by  said  stream  is  barely  sufiicient  to 
sustain  the  stock  of  complainant,  defendant, 
and  other  riparian  proprietors  along  the 
stream,  with  water  for  their  natural  wants, 
and  for  domestic  use,  and  that  there  is  not 
a  sufticient  volume  of  water,  so  that  the  de- 
fendant can  use  any  part  thereof  in  the  irri- 


gation of  his  land.  He  found  that  the  de- 
fendant had  obstructed  the  flow  of  water  in 
said  stream,  aud  used  it  for  the  purpose  of 
irrigation,  aud  that  the  appropriation  of  wa- 
ter by  the  defendant  was  contrary  to  the 
rights  of  complainant.  He  made  a  decree 
perpetually  enjoining  the  defendant  from 
appropriating  any  of  the  water  to  the  pur- 
poses of  irrigation,  aud  from  using  the  wa- 
ter for  any  other  than  ordinary  purposes, 
in  supplying  the  natural  wants  of  the  de- 
fendant, including  the  use  of  the  water  for 
domestic  purposes  in  connection  with  his 
home,  and  the  use  of  his  farm.  He  also 
made  in  the  decree  a  direction  that  the  de- 
fendant forthwith  remove  any  and  all  dams 
and  obstructions  made  or  maintained  by 
him  upon  his  land,  or  from  interfering  with, 
obstructing,  or  perverting  the  flow  of  said 
stream  upon  said  lands  of  complainant,  ex- 
cept as  above  stated.  From  that  decree  the 
defendant  appeals. 

It  is  claimed  by  defendant  that,  inasmuch 
as  there  is  no  allegation  in  complainant's 
bill  that  he  is  damaged  to  the  amount  of 
$100,  the  bill  did  not  confer  jurisdiction  on 
the  court,  and  should  have  been  dismissed. 
We  do  not  think  this  contention  can  be  sus- 
tained. Rowland  v.  Doty,  Har,  (Mich.)  3; 
White  V.  Forbes,  Walk.  (Mich.)  112, 

Something  more  than  500  pages  of  testi- 
mony was  taken  in  the  case.  It  would  not 
be  profitable  to  make  an  analysis  of  it  here. 
A  careful  examination  of  the  testimony 
shows  that  the  decree  of  the  learned  judge 
was  warranted  by  the  facts  shown,  except 
in  one  particular.  The  record  discloses  that 
in  1852  or  1853  a  dam  was  put  across  this 
stream,  on  the  premises  of  defendant,  for 
the  purpose  of  diverting  a  portion  of  the 
stream  to  the  house  and  barns  occupied  by 
the  then  proprietor,  for  the  purpose  of  sup- 
plying the  natural  wants  of  the  proprietor, 
including  the  use  of  the  water  for  domestic 
purposes  and  for  stock,  in  connection  with 
his  home  and  farm.  This  dam  was  main- 
tained, either  at  that  place  or  at  anoth^,  suf- 
ficiently long,  so  that  a  prescriptive  right  is 
acquired  to  maintain  it  for  the  purpose  of 
furnishing  a  supply  of  water  for  domestic 
purposes.  The  use  of  the  water  by  defend- 
ant for  purposes  of  irrigation  is  entirely  un- 
warranted. It  is  not  until  very  recently 
that  an  attempt  has  been  made  to  use  the 
water  for  that  purpose.  In  view  of  the  fact 
that  this  dam  was  maintained  so  long  for 
the  purposes  of  conveying  water  to  the 
house  and  bams  of  defendant,  which  is  a 
great  convenience  to  him,  and  the  effect  of 
removing  the  dam  would  do  away  with  that 
valuable  right,  and  compel  the  defendant  to 
carry  water  a  long  distance,  we  think  the 
decree  ought  to  be  modified  in  that  partic- 
ular. The  defendant  should  be  allowed  to 
have  the  use  of  so  much  of  the  water  in 
said  stream  as  shall  be  necessary  for  ordi- 
nary pui-poses  in  supplying  his  natural 
wants,  including  the  use  of  the  water  for 


RIPARIAN  PROPRIETORS. 


29 


domestic  purposes  and  for  stock,  in  connec- 
tion with  liis  home  and  farm,  and  for  no 
other  purpose;  and  he  ought  to  be  allowed 
to  maintain  such  a  dam  or  obstruction  in 
said  stream  as  would  enable  him  to  convej 
the  water  to  his  house  and  barns  in  sufficient 
quantities  for  said  purposes,  and  for  no  other 


purpose.  The  decree  is  modified  to  this 
extent,  and  atfirmed  in  all  other  particulars; 
complainant  to  have  costs  in  lower  court 
Neither  party  to  have  costs  here. 

GRANT,   J.,   did   not  sit     The  other  jus- 
tices concurred. 


30 


WHAT  IS  REAL  PROPERTY. 


SMITH  et  al.  v.  YOUMANS  et  al. 
(70  N.  W.  1115.) 
Supreme   Court  of  Wisconsin.     April  30.   1897. 

Appeal  from  circuit  court,  Walwortti  coun- 
ty;   Frank  M.  Fisli,  Judge. 

Suit  by  Sliea  Smitli  and  others  against 
Hem-y  M.  Youmans  and  others  for  an  injunc- 
tion. From  a  judgment  for  plaintiffs,  de- 
fendants appeal.    Affirmed. 

This  is  an  action  to  restrain  the  defendants 
from  in  any  way  or  manner  drawing  down 
or  lowering  the  water  in  Lake  Beulah,  so 
called,  and  is  brought  by  a  large  number  of 
riparian  proprietors  on  and  along  the  waters 
of  said  lake  against  the  owners  and  lessee 
of  a  certain  dam  at  or  near  the  outlet,  where- 
by the  waters  of  the  lake  were  raised  to  a 
sufticient  level  to  create  a  water  power  for 
milling  purposes.  Upon  a  trial  of  the  issues 
joined  there  was  a  tinding  of  facts,  in  sub- 
stance: That  Lake  Beulah,  as  it  now  exists, 
originally  consisted  of  two  meandered  lakes, 
which  were  separated  by  a  strip  of  marsh 
about  80  rods  wide,  through  which  ran  a 
small  stream.  The  outlet  of  the  more  north- 
erly of  the  lakes  was  by  a  small  stream  call- 
ed Beulah  river,  which  runs  northerly,  and 
then  easterly  until  it  empties  into  Mukwana- 
go  creek,  and  said  creek  runs  into  Fox  river. 
In  1838  a  dam  was  built  across  the  outlet 
of  said  lake  at  about  the  point  where  it  left 
the  lake,  and  the  waters  of  the  lake  were 
raised  a  few  feet,  creating  power  for  a  saw- 
mill erected  at  the  dam.  After  1845,  and  be- 
fore 1852,  the  original  outlet  was  closed  by 
an  embankment,  and  has  ever  since  so  re- 
mained, and  an  artificial  outlet  to  said  lakes 
was  created,  at  which  point  another  dam 
was  created,  raising  the  waters  in  said  lake 
to  the  height  of  6  feet  above  their  natural 
level,  and  18  inches  higher  than  by  the  for- 
mer dam,  creating  a  body  of  water  known 
as  "Mill  Lake,"  and  a  new  and  artificial  out- 
let for  the  said  lakes,  so  that  their  waters, 
after  passing  over  such  dam,  flowed  by  a 
new  channel  into  said  Beulah  river,  and  in 
consequence  of  such  dam  the  waters  of  the 
said  two  lakes  were  so  raised  as  to  flood  to 
a  considerable  depth  the  marsh  land  for- 
merly separating  them,  and  making  of  them 
one  body  of  water  upwards  of  three  miles 
in  length,  and  varying  in  width  from  a  quar- 
ter of  a  mile  to  one  mile  and  a  quarter,  and  with 
an  area  of  about  DiJO  acres.  Ail  these 
changes  were  made  by  Ball  &  Mower,  the 
remote  grantors  of  H.  A.  Youmans,  under 
and  through  whom  the  defendants  claim 
their  rights  and  interests;  and  Ball  &  Mower 
built  upon  a  site  near  said  dam  a  grist  mill, 
which  was  used  and  operated  by  the  power 
thus  provided  until  it  was  destroyed  by  fire 
in  1876.  That  the  owners  of  the  said  dam 
and  mill  site  at  all  times  thereafter  until 
shortly  before  the  commencement  of  this  ac- 
tion maintained  the  level  of  the  water  in 


said  lakes  at  the  point  to  which  it  was  rais- 
ed by  said  dam,  save  only  as  it  was  raised 
by  freshets  or  unusual  rains,  or  was  low- 
ered, as  hereinafter  stated,  by  draft  of  wa- 
ter through  the  said  dam  for  use  at  said 
mill.  By  the  construction  and  maintenance 
of  said  dam,  and  such  consequent  raising  of 
the  level  of  waters  in  said  lakes,  portions  of 
the  lands  owned  by  certain  of  the  plaintiffs 
and  the  grantors  of  certain  others  of  them 
were  flowed  and  submerged  by  such  dam 
owners  continuously,  adversely,  and  uninter- 
ruptedly and  notoriously,  exclusively  of  any 
other  right,  under  claim  of  right  for  more 
than  40  years,  and  at  all  times  during  that 
period  the  said  level  to  which  the  waters 
were  so  raised  by  said  dam  was  substantial- 
ly and  constantly  maintained;  so  that  said 
Youmans  and  his  said  grantors  and  his  heirs 
and  devisees  acquired  a  right  by  prescrip- 
tion to  so  flow  said  lands,  both  as  against 
the  owners  of  lands  bordering  on  said  lakes 
and  as  against  riparian  owners  below  said 
lands.  One  effect  of  the  construction  of  said 
artificial  outlet,  and  the  diversion  thereto  of 
the  natural  flow  of  the  waters  of  said  lakes, 
and  the  construction  and  maintenance  of 
said  dam  and  embankment,  was  to  deepen 
the  waters  of  the  lakes,  and  set  said  waters 
up  and  back  against  the  hard  and  higher 
banks,  and  to  make  said  lakes  navigable  for 
row  boats,  small  sail  boats  and  steam 
launches,  and  to  make  the  banks  eligible  and 
desirable  sites  for  summer'cottages  and  sum- 
mer resorts,  and  to  make  said  lakes  a  desira- 
ble place  for  fishing,  boating,  and  recreation, 
and  to  make  the  margin  of  the  lake  touch 
the  grassy  banks,  and  submerge  the  boggy 
and  marshy  shores,  as  they  before  existed, 
and  to  render  the  banks  readily  accessible  by 
small  row  and  pleasure  boats.  About  the 
year  1888,  and  from  time  to  time  thereafter, 
sundry  of  the  plaintiffs,  relying  upon  said 
conditions,  and  the  level  of  the  lake  as  then 
existing,  and  as  having  so  uniformly  existed 
for  more  than  40  years,  built  summer  homes 
for  themselves  and  families,  or  summer  re- 
sorts for  recreation,  and  purchased  divers 
lots  and  parcels  of  land  fronting  and  bound- 
ed on  said  lakes  for  that  pui-pose,  and  made 
divers  and  simdry  valuable  improvements  on 
said  lots  to  that  end,  as  did  many  other  per- 
sons. That  certain  other  plaintiffs  named 
owned  lots  and  lands  bounded  by  said  lakes, 
and  had  owned  the  same  from  an  early  day. 
That  said  lands,  for  agricultural  purposes, 
were  worth  not  more  than  $50  per  acre,  but 
for  the  purposes  aforesaid,  with  the  level  of 
said  lakes  as  thus  maintained,  were  worth 
from  $1,000  to  $2,000  per  acre.  The  dam  be- 
longing to  the  defendants  Youmans,  Haight, 
and  West  consists  of  an  embankment  of 
earth,  with  two  openings,  one  for  a  flume, 
and  the  other  for  a  waste  weir,  and  are 
planked  on  the  bottom  and  sides,  and  after 
the  destruction  of  the  mill,  and  until  a  short 
time  before  the  action  was  brought,  were 
kept  closed  by  bulkheads,  backed  up  with 


RIPARIAN  PROPRIETORS. 


31 


gravel;  and  after  the  destruction  of  the  mill 
in  I'STG  the  power  created  by  the  dam  had 
not  been  used.  Tlie  defendant  .John  Howitt 
i.s,  and  for  many  years  has  been,  the  owner 
of  a  grist  mill  at  Mukwanago,  upon  a  stream 
into  which  said  Beulah  river  empties,  about 
five  miles  below  said  dam,  wliich  is,  and  for 
40  years  past  has  been,  driven  by  water 
power  created  by  a  dam  across  the  said 
stream;  and  said  Howitt,  September  IG, 
1891,  took  from  H.  A.  Youmans,  then  the 
owner  of  the  dam  and  mill  site  at  the  foot 
of  said  lakes,  a  lease  of  the  water  power 
and  water  rights  there  created,  and  which 
still  remained  in  force,  and  by  it  he  was  to 
expend  a  certain  sum  annually  on  the  dam, 
flumes,  and  weirs  of  said  water  power,  and 
was  to  do  certain  other  work  thereon.  If 
the  bulkheads  were  to  be  removed,  and  the 
water  allowed  to  run  freely  through  said 
dam,  the  level  of  the  water  in  the  Beulah 
Lake  would  be  drawn  down  to  a  point  over 
three  feet  below  the  lowest  point  to  which 
the  water  was  drawn  in  the  operation  of  the 
mill  formerly  there  maintained;  and,  if  the 
dam  should  be  removed,  the  said  watei"s 
would  fall  to  a  point  four  feet  further.  The 
lowest  point  to  which  the  waters  were 
drawn,  or  could  be  drawn  consistent  with 
the  operation  of  said  mill,  was  a  point  3.3 
inches  above  the  floor  of  the  flume,  where 
said  bulkhead  crosses  the  same  in  the  west- 
ern opening  in  said  dam;  and  the  watere  of 
the  lake  were  continuously  maintained  at 
that  point,  until  the  defendants  took  out  the 
bulkheads,  a  short  time  before  this  action 
was  commenced,  and  drew  down  the  waters 
of  the  lake  to  the  level  of  the  floor  of  said 
flume,  to  the  great  injury  of  the  plaintiffs. 
That  lowering  the  waters  of  said  lake  will 
substantially  impair  the  value  and  availabil- 
ity of  the  parcels  and  lots  of  land  owned  by 
the  plaintiffs  and  bounded  on  the  lake;  the 
waters  will  recede  from  its  banks,  and  in 
almost  all  places  strips  of  slimy,  boggy,  and 
marshy  shore  will  be  uncovered,  preventing 
access  by  boats  to  the  plaintiffs'  piers,  and 
will  substantially  impair,  and  well-nigh  de- 
stroy, the  beauty  of  the  lake,  and  its  adap- 
tation and  availability  for  summer  resi- 
dences and  summer  resorts,  and  make  the 
vicinity  unhealthful,  and  render  the  plain- 
tiffs' improvements  practically  valueless  for 
the  purposes  for  which  they  Avere  construct- 
ed. Shortly  before  the  action  was  com- 
menced, said  bulkheads  were  replaced  to  the 
height  of  two  feet  or  more,  and  so  that  the 
waters  of  the  lake  rose  and  overflowed  the 
bulkheads.  Tlie  plaintiffs  asked  judgment 
that  the  defendants,  their  agents,  etc.,  be 
perpetually  restrained  from  in  any  way  rais- 
ing, taking  out,  or  removing  from  the  said 
dam  any  of  the  bulkheads  or  waste  or  flash 
boai'ds  in  or  on  the  same,  and  from  in  any 
way  throwing  down,  lowering,  or  opening 
the  dam,  and  from  in  any  way  interfering 
with  or  drawing  down  tlie  water  in  Lake 
Beulah.    The  defendants  insisted  upon  their 


right  to  use  and  withdraw  the  waters  of  said 
lake  according  to  their  needs  and  discre- 
tion. .Judgment  was  given  perpetually  re- 
straining the  defendants,  their  agents,  etc., 
from  doing  any  of  the  acts  mentioned  so  as 
to  permit  or  allow  the  flow  of  water  from 
the  lake  at  a  level  below  the  point  named, 
3.3  inches  above  the  floor  in  the  flume,  etc., 
and  for  costs;  from  which  the  defendants 
appealed. 

Ryan  &  Merton  and  T.  W.  Haight,  for  ap- 
pellants. D.  S.  Tullar  and  Quarles,  Spence 
&  Quarles,  for  respondents. 

PINNEY,  J.  (after  stating  the  facts).  It 
clearly  appears  tliat  H.  A.  Youmans,  the  lessor 
of  the  defendant  Howitt,  and  ancestor  through 
whom  the  other  defendants  derived  their  rights 
to  the  mill  power  and  water  rights  and  privi- 
leges in  question,  acquired  a  right  by  prescrip- 
tion, or  an  easement,  to  maintain  tlie  waters 
of  Lake  Beulah  at  the  level  to  which  they 
were  flnally  raised,  and  at  which  they  had 
been  maintained  for  a  jieriod  of  over  40  years, 
and  consequently  to  set  the  waters  of  the  lake 
back  against  and  over  and  uix)n  the  lands  of 
the  riparian  proprietors,  the  plaintiffs  and 
others,  or)  the  lake,  for  the  purpose  of  creat- 
ing and  maintaining  the  necessary  power  for 
propelling  a  grist  mill.  His  mill  site,  dam, 
and  appurtenances  constituted  the  dominant 
estate,  and  the  right  which  he  acquired  was 
an  easement  in  the  one  estate,  and  a  servitu  le 
upon  the  estates  of  other  riparian  owners. 
Washb.  Easem.  5.  It  seems  to  be  a  fair  infer- 
ence that  such  riparian  owners,  in  view  of  the 
advantages  that  might  or  would  accrue  to 
them  by  raising  the  level  of  the  waters  of  the 
lake  by  the  dam  in  question,  were  induced  to 
consent  or  acquiesce  therein,  and  in  the  aser 
of  the  dam  and  waters  of  the  lake  by  You- 
mans and  his  predecessor  in  interest  until  their 
acts  had  ripened  into  an  easement  by  prescrip- 
tion. The  relative  relations  and  interests  of 
the  parties  which  have  thus  ori,glnated,  grown 
up,  and  become  fixed  by  prescription,  would 
seem  to  impose  upon  the  parties  reciprocal 
rights  and  duties,  at  least  to  the  extent  that, 
so  long  as  such  relative  rights  exist  and  are 
asserted,  each  party  is  bound  in  equity  to  ab- 
stain from  doing  anything  to  the  prejudice  of 
the  other's  rights,  founded  upon  the  relations 
thus  created  between  them,  and  that  tliey  are 
equitably  bound  to  deal  fairly,  reasonably,  and 
justly  with  each  otlier  in  respect  thereto.  It 
has  long  been  settled  that  the  artificial  state 
or  condition  of  flowing  water,  founded  upon 
prescription,  becomes  a  substitute  for  the  nat- 
ural condition  previously  existing,  and  from 
which  a  right  arises  on  the  part  of  those  in- 
terested to  have  the  new  condition  maintained. 
The  water  course,  though  artUicial,  may  have 
originated  under  such  circumstances  as  to  give 
rise  to  all  the  rights  that  riparian  proprietors 
have  in  a  natural  and  permanent  stream,  or 
have  been  so  long  used  as  to  become  a  nat- 
ural water  course  prescriptively;  and  "when  a 


32 


WHAT  IS  KEAL  PROPERTY. 


riparian  owner  has  diverted  the  water  into  an 
artificial  channel,  and  continued  such  change 
for  more  than  twenty  years,  he  cannot  restore 
it  to  its  natural  channel,  to  the  injury  of  other 
proprietors  along  such  channel,  who  have 
erected  works  or  cultivated  their  lands  with 
reference  to  the  changed  condition  of  the 
stream,  or  to  the  injury  of  those  upon  the  arti- 
ficial water  course  who  have  acquired  by  long 
user  the  right  to  enjoy  the  water  there  flow- 
ing." Gould,  Waters,  §  225,  and  cases  there 
cited.  It  is  upon  this  ground  that  when  the 
natural  outlet  of  Lake  Beulah  was  closed,  and 
so  remained  for  over  20  years,  the  artificial 
outlet  at  that  time  opened,  and  since  main- 
tained during  that  period,  became  the  natural 
outlet,  with  all  its  legal  incidents  and  conse- 
quences. In  Belknap  v.  Trimble,  3  Paige,  577, 
605,  it  was  held  "that  the  rule  must  be  re- 
ciprocal; that  the  proprietor  of  land  at  the 
head  of  a  stream,  who  changes  the  natural 
flow  of  water,  and  has  continued  such  change 
for  20  years,  cannot  afterwards  be  permit- 
ted to  restore  the  flow  of  water  to  its  natural 
state,  when  it  will  have  the  effect  to  destroy 
the  mills  of  other  proprietors,  which  have  been 
erected  in  reference  to  such  change  in  the  nat- 
ural flow  of  the  stream."  Washb.  rnse^^' 
*ol3-315.  In  Mathewson  v.  Hoffman,  77 
Mich.  421,  434,  43  N.  W..879,  the  rule  thus 
stated  in  Belknap  v.  Trimble,  supra,  was  ap- 
proved. Lampman  v.  Milks,  21  N.  Y.  505; 
Roberts  v.  Roberts,  55  N.  Y.  275.  It  is  also 
sui-pcrted  by  Delaney  v.  Boston,  2  Har.  (Del.) 
4S9-491;  Middleton  r.  Gregorie,  2  Rich.  Law, 
G31-637.  In  Washb.  Easem.  *313-315,  the 
learned  author  lays  it  down  that:  "Where  one 
who  owns  a  water  course,  in  which  another 
is  interested,  or  by  the  use  of  which  anotlier  is 
affected,  does,  or  suffers  acts  to  be  done,  affect- 
ing the  rights  of  other  proprietors,  whereby  a 
state  of  things  is  created  which  he  cannot 
change  without  materially  injuring  anotlier, 
who  has  been  led  to  act  by  what  he  himself  had 
done  or  permitted,  the  courts  often  apply  the 
doctrine  of  estoppel;  and  equity, and  sometimes 
law,  will  interpose  to  prevent  his  causing  such 
change  to  be  made."  In  Woodbury  v.  Short, 
17  Vt.  387,  it  was  held  that,  where  a  diversion 
of  the  stream  affects  other  proprietors  favora- 
bly, and  the  party  on  whose  land  the  diver- 
sion is  made  acquiesces  in  the  stream  running 
in  the  new  channel  for  so  long  a  time  that  new 
rights  may  be  presumed  to  have  accrued,  or 
have  accrued,  in  faith  of  the  new  state  of  the 
stream,  the  party  is  bound  by  said  acquies- 
cence, and  cannot  return  the  stream  to  the 
former  channel.  Ford  v.  Whitlock,  27  Vt.  265; 
Norton  y.  Volentine,  14  Vt.  246.  These  cases 
relate,  it  is  true,  to  diversions  of  water  in 
running  streams,  but  we  are  unable  to  per- 
ceive any  reason  wliy  the  same  principle  is  not 
eqvially  applicable  to  changes  made  in  the  level 
of  a  lake  or  pond,  where,  by  means  of  a  dam, 
the  natural  level  has  been  raised  for  hy- 
draulic purposes.  The  maintenance  of  the 
higher  level  of  waters  in  the  lake  for  the  pe- 
riod of  prescription  secured  to  the  owners  of 


the  mill  site  an  easement  in  their  favor  to 
keep  up  the  water  to  the  necessary  level  to 
furnish  water  power  for  their  mill.  So,  on  the 
other  hand,  the  riparian  owners  above  have 
epjoyed,  without  question  or  interruption,  for 
the  same  period  of  time,  the  advantages  result- 
ing from  the  flooding  and  submer.sion  of  their 
lands,  by  wliich  the  depth  of  water  in  the  lake 
was  greatly  increased,  and  low,  boggy, 
swampy,  and  unsightly  lands  were  flooded,  so 
that  the  waters  extended  to  the  high  banks, 
whereby  their  access  to  and  from  the  lake  was 
improved,  and  the  adjacent  lands,  with  the  re- 
sulting amenities  and  advantages,  have  been 
rendered  extremely  desirable  for  the  particu- 
lar use  for  which  they  have  been  improved  at 
great  cost  and  expense,  namely,  for  summer 
resorts,  relying  upon  the  continued  level  of 
the  water  in  the  lake  without  change,  without 
which  they  would  be  deprived  of  the  greater 
portion  of  their  present  value.  May  it  not  be 
justly  said  that  the  respective  tenements  or  es- 
tates, by  the  acts  of  their  respective  owners. 
have  become  each  dominant,  and  each  servient 
to  the  other  in  respect  to  the  respective  ease- 
ments and  advantages  thus  acquired  by  them, 
and  enjoyed  during  the  usual  prescriptive  pe- 
riod? In  the  case  of  Cedar  Lake  Hotel  Co.  v. 
Cedar  Creek  Hydraulic  Co.,  79  Wis.  297,  48 
N.  W.  371,  this  court  held  that  one  who  owns 
land  on  the  shores  of  an  inland  lake,  which  is 
valuable  for  use  as  a  pleasure  resort,  on  ac- 
count of  its  proximity  thereto,  and  the  easy 
access  to  its  waters  for  boating  and  fisliing, 
can  maintain  an  action  to  restrain  other  ri- 
parian proprietors  from  so  drawing  off  the  wa- 
ters of  the  lake  as  to  lower  its  level,  and  leave 
a  wide  margin  of  bog,  covered  witli  decaying 
vegetation,  along  its  shores,  making  it  repul- 
sive in  appearance  and  unhealthy  in  effect, 
and  thus  injurious  to  the  plaintiff's  property; 
and  this  was  so  held  in  view  of  the  relative 
rights  and  duties  of  the  riparian  proprietors, 
and  not  because  of  the  restrictive  grant  of 
power  to  the  corporation,  one  of  the  defend- 
ants. It  is  true  that  this  was  held  in  relation 
to  an  attempted  change  in  the  natural  level 
of  Cedar  Lake,  but  the  conclusion  seems  irre- 
sistible that  the  increased  level  of  the  lake,  in 
view  of  the  facts  found,  by  parity  of  reason- 
ing from  the  adjudged  cases  referred  to  in  re- 
lation to  streams,  must  be  esteemed  as  having 
the  legal  incidents  of  the  natural  level;  cer- 
tainly so  long  as  the  defendants  retain  and  in- 
sist upon  their  easement  to  keep  and  main- 
tain the  dam  at  a  height  to  keep  up  such  new 
level  in  the  lake.  They  have  not  and  do  not 
propose  to  abandon  or  surrender  this  easement. 
They  are  certainly  bound  to  exercise  their 
rights  in  a  fair  and  reasonable  manner,  and  as 
they  had  been  accustomed  to  do,  and  not  ca- 
priciously or  wantonly,  so  as  to  prejudice  the 
existing  rights  and  interests  of  the  plaintiffs 
as  riparian  owners.  The  judgment  of  the  cir- 
cuit court  is  in  accordance,  we  think,  with 
sound  principles,  and  the  doctrines  recognized 
and  enforced  in  such  and  similar  eases  in  courts 
of  equity.    We  have  no  doubt  but  that  the  de- 


RIPARIAN  PROPPIETORS. 


33 


fendants  may  abandon  their  water  rights  and 
easement,  so  as  to  escape  all  liability  at  law 
for  consequent  damages,  if  they  are  not  bound 
by  law  or  agreement  to  maintain  the  higher 
level  of  the  waters  of  the  lalie.  It  was  held 
in  Mason  v.  Railway  Co.,  L.  R.  6  Q.  B.  578, 
that  the  owners  of  the  servient  estate  could 
acquire,  by  the  mere  existence  of  the  easement, 
no  right,  as  against  the  owner  of  the  dominant 
tenement,  to  the  continuance  of  its  use  and  ex- 
ercise, as  in  the  case  of  an  easement  for  diver- 
sion of  water;  that  he  had  the  right  to  aban- 
don the  exercise  and  use  of  his  easement,  as 
it  was  not  compulsory.  But  here,  as  stated, 
there  has  been  no  abandonment  or  surrender, 
and  the  case  must  be  determined  upon  the 
equitable  grounds  arising  out  of  the  special 
facts  found  by  the  trial  court. 

2.  As  to  the  defendant  Howitt,  it  is  neces- 
sary only  to  observe  that  he  stands,  in  respect 
to  his  lease,  in  the  same  plight  and  condition 
GATES.R.P.— 3 


of  his  lessor,  and  with  no  other  or  greater 
rights.  He  has  no  right,  under  the  lea-se,  to  use 
the  dam,  bulkhead,  etc.,  as  a  reservoir  to  ac- 
cumulate water  in  a  manner  not  permissible 
to  his  lessor,  or  to  accumulate  and  hold  water 
for  his  mill  on  the  stream  below,  in  order  to 
discharge  it  irregularly,  and  m  great  volumes, 
as  may  suit  his  convenience,  thus  drawing 
down  wholly,  or  in  great  part,  the  waters  of 
the  lake  to  the  level  of  the  flume.  As  a  ri- 
parian owner  on  Mukwanago  creek  below,  he 
has  no  such  right,  but  is  entitled  only  to  the 
accustomed  flow  of  the  water  as  it  had  been 
wont  to  run,  without  material  alteration  or 
diminution,  and  to  his  mill  on  the  stream  be- 
low (Kimberly  &  Clark  Co.  v.  Hewitt,  79  Wis. 
334,  48  N.  W.  373),  all  of  which  he  obtains 
by  the  flow  of  the  water  over  the  dam  or  waste 
gates.  For  these  reasons  we  think  that  the 
judgment  of  the  circuit  court  is  correct.  The 
judgment  of  the  circuit  court  is  affirmed. 


34 


WHAT  IS  REAL  PROPERTY. 


OCEAN  GROVE  CAMP  MEETING  ASS'N 

V.  COMMISSIONERS  OF  ASBURY 

PARK. 

(3  Atl.  168,  40  N.  J.  Eq,  447.) 

Court  of  Chancery  of  New  Jersey.    Oct.  Term, 

1885. 

On  order  to  show  cause  why  injunction  should 
not  issue. 

R.  Ten  Broeck  Stout,  for  complainants.  D. 
Harvey,  Jr.,  and  J.  F.  Hawkins,  for  defendants. 

BIRD,  V.  C.  More  than  15  years  ago  the 
complainants  purchased  a  large  tract  of  land 
fronting  upon  the  ocean,  chiefly  for  the  pur- 
poses of  a  summer  resort  to  exercise  the  right 
of  worship.  The  enterprise  has  so  grown  that 
in  winter  it  has  a  population  of  about  5,000, 
and  in  summer  of  10,000  or  15,000.  The  au- 
thorities soon  discovered  that,  to  preserve  the 
good  health  of  the  residents  and  visitors,  it  was 
absolutely  necessary  to  improve  their  water- 
supply  and  sewerage  system.  To  do  this  they 
bored  for  water,. and  at  the  depth  of  over  400 
feet  struck  water  which  gave  them  a  flow  of 
50  gallons  per  minute  at  an  elevation  above 
the  surface  of  28  feet.  This  they  carried  into 
the  city  by  means  of  pipes,  and  supplied  there- 
with about  70  hotels  and  cottages.  They  also 
applied  it  to  the  improvement  of  their  sewer- 
age system.  The  volume  of  water  thus  pro- 
duced continued  to  flow  undiminished  in  quanti- 
ty and  with  unabated  force  imtil  the  action  of 
the  defendants  now  complained  of,  and  to  re- 
strain which  the  bill  in  this  cause  was  filed. 
The  Commissioners  of  Asbury  Park,  a  corpor- 
ate body,  purchased  a  large  tract  of  land  im- 
mediately north  of  and  adjacent  to  the  tract 
owned  by  Ocean  Grove.  Under  their  manage- 
ment, this,  too,  has  become  a  famous  seaside 
resort.  Its  population  is  equal  to,  if  not  great- 
er at  all  times  than,  that  of  Ocean  Grove.  The 
authorities  saw  a  like  necessity  for  an  increas- 
ed supply  of  wholesome  water.  They  entered 
into  a  contract  with  others,  a  portion  of  these 
defendants,  to  procure  for  them  water  by  bor- 
ing in  the  earth.  These,  their  agents,  sank 
several  shafts  to  the  depth  of  over  400  feet 
without  satisfactory  success.  One  shaft  yield- 
ed about  4  gallons  to  the  minute,  and  another, 
which  yielded  the  most,  only  9.  All  of  the 
wells  were  upon  the  land  and  premises  of  the 
Asbury  Park  Association.  It  became  evident, 
and  is  manifest  to  the  most  casual  observer, 
that  these  wells  would  not  supply  the  volume  of 
water  needed.  It  was  also  manifest  that  the 
experiment  to  procure  water  by  digging  upon 
their  own  land  had  been  quite  reasonably  ex- 
tended, although  not  so  complete  as  to  satisfy 
the  mind  that  they  cannot  obtain  water  on  their 
own  premises  as  well  as  elsewhere,  since  it  is 
in  evidence  that  there  are  two  wells  on  their 
premises,  sunk  by  individuals,  which  produce 
16  gallons  each  per  minute,  being  as  much  in 
quantity  as  they  procure  from  the  well  which 
is  complained  of.  Failing  in  their  efforts  upon 
their  own  premises,  they  go  elsewhere,  on  the 


land  owned  by  individuals,  and,  procuring  a 
right  from  individual  owners,  sink  a  shaft  upon 
the  public  highway,  near  to  the  land  of  the 
complainants,  and  within  500  feet  of  the  com- 
plainants' well.  This  bore  extended  to  the 
depth  of  416  feet,  within  8  feet  of  the  depth 
of  complainants'  well.  At  this  depth  they  se- 
cured a  flow  of  water  at  the  rate  of  30  gallons 
per  minute,  and  the  supply  from  the  complain- 
ants' well  was  almost  immediately  decreased 
from  50  gallons  to  30  per  minute.  The  diminu- 
tion in  water  was  immediately  felt  by  many  of 
those  who  depended  for  a  supply  from  this 
source  in  Ocean  Grove.  The  Asbury  Park  au- 
thorities propose  to  sink  other  wells  still  nearer 
the  well  of  complainants.  This  bill  asks  that 
they  may  be  prohibited  from  so  doing,  and  that 
they  may  be  commanded  to  close  the  well  al- 
ready opened,  which,  it  is  alleged,  is  supplied 
from  the  same  source  that  the  complainants' 
well  is  supplied  from. 

The  complainants  are  first  in  point  of  time. 
They  are  upon  their  own  land  and  premises. 
They  procure  water  from  their  own  soil  to  be 
used  in  connection  with  their  said  premises,  in 
the  improvement  and  beneficial  enjoyment  of 
their  occupation.  In  this  they  have  exercised 
an  indefeasible  and  unqualified  right.  It  mat- 
ters not  whether  the  water  which  they  obtain 
is  from  a  pond  or  under-ground  basin,  or  only 
the  result  of  percolation,  or  from  a  flowing 
stream.  The  defendants  went  from  their  own 
land  upon  the  land  of  strangers,  and  obtained 
pennission  to  bore  for  water,  and  there  sink 
their  shaft,  procuring  water  from  the  same 
source  that  the  complainants  procured  their 
water,  and  diverted  it  and  carried  it  to  their 
premises,  three-eighths  of  a  mile,  for  use.  Can 
they  be  restrained  from  doing  this?  A  very 
careful  consideration  of  a  great  many  authori- 
ties leads  me  to  the  conclusion  that  they  can- 
not at  the  instance  of  the  complainants.  Aug. 
Water-Courses,  §§  109-114,  inclusive;  Gould, 
Waters,  §  280;  Ballard  v.  Tomlinson,  26  Ch. 
Div.  194;  Chasemore  v.  Richards,  7  H.  L,  Cas. 
349,  5  Hurl.  &  N.  982;  Acton  v.  Blundell,  12 
Mees.  &  W.  324;  Chase  v.  Silverstone,  62  Me. 
175;  Roath  v.  DriscoU,  20  Conn.  533;  Village 
of  Delhi  V.  Youmans,  45  N,  Y.  362;  Goodale  v. 
Tuttle,  29  N.  Y.  459;  Wheatley  v.  Baugh,  25 
Pa.  St.  528;  Frazier  v.  Brown,  12  Ohio  St. 
294. 

The  courts  all  proceed  upon  the  ground  that 
waters  thus  used  and  diverted  are  waters  which 
percolate  through  the  earth,  and  are  not  dis- 
tinguished by  any  certain  and  well-defined 
stream,  and  consequently  are  the  absolute  prop- 
erty of  the  owner  of  the  fee,  as  completely  as 
are  the  ground,  stones,  minerals,  or  other  mat- 
ter to  any  depth  whatever  beneath  the  surface. 
The  one  is  just  as  much  the  subject  of  use,  sale, 
or  diversion  as  the  other.  Ttie  owner  of  a  mine 
encounters  innumerable  drops  of  water  escap- 
ing from  every  crevice  and  fissure.  These, 
when  collected,  interfere  with  his  progress,  and 
he  may  remove  them,  although  the  spring  or 
well  of  the  land-owner  below  be  diminished  or 
destroyed.    So  the  owner  or  owners  of  a  bog, 


UNDEKGEOUND  WATERS. 


S5 


marsh,  or  meadow  may  sink  wells  therein,  and 
carry  off  the  waters  collected  in  them,  to  the 
use  or  enjoyment  of  a  distant  village  or  town, 
although  the  waters  of  a  large  stream  upon  the 
surface  be  thereby  so  diminished  as  to  injure 
a  mill-owner  who  had  enjoyed  the  use  of  the 
waters  of  the  stream  for  many  years.  Upon 
these  principles,  there  can  be  no  doubt  but  that 
€very  lot-owner  in  Ocean  Grove  or  Asbury  Park 
■could  sink  a  well  on  his  lot  to  any  depth,  and, 
in  case  one  should  deprive  his  neighbor  of  a  por- 


tion or  all  of  his  supposed  treasure,  no  action 
would  lie.  A  moment's  reflection  will  enable 
every  one  to  perceive  that  such  conditions  or 
contingencies  are  necessarily  incident  to  the 
ownership  of  the  soil.  In  the  case  before  me 
there  is  no  proof  that  the  waters  in  question  are 
taken  from  a  stream,  and  I  have  no  right  to 
presume  that  they  are.  The  presumption  is  the 
other  way.  It  seems  to  be  my  very  plain  duty 
to  discharge  the  order  to  show  cause,  with 
costs. 


36 


WHAT  IS  REAL  PROPERTY. 


WILLIS  V.  CITY  OF  PERRY. 
(60  N.  W.  727,  92  Iowa,  297.) 
Supreme  Court  of  Iowa.      Oct.  22.  1894. 
Appeal   from  district   court,   Dallas   county; 
J.  H.  Heiitlerson,  Judge. 

Action  for  damages  caused  by  diverting 
water  from  a  flowing  well.  Verdict  and 
judgment  for  plaintiff.  Defendant  appeals. 
Affirmed. 

Shortley  &  Harpel,  for  appellant.  White 
&  Clark,  for  appellee. 

KINNE,  J.     The  undisputed  facts  in  this 
case  are  that  in  1888  plaintiff  sunk  a  well  on 
ner  lot  in  the  city  of  Perry,  Iowa,  and  se- 
cured a  flow  of  water  therefrom,  which  rose 
to  a  height  of  several  feet  above  the  surface 
of  the  ground.     She  erected  a  bath  house, 
and  piped  the  water  from  the  well  into  said 
house  and  the  bath  tubs  therein,  and  built 
up  a  large  and  profitable  business.     In  1890 
one  Blank  sunk  a  well  on  his  ground,  near  to 
plaintiff's   well;    and,   very   soon   after,   one 
Burrington   sunk   a  well  on   his   land   near 
plaintiff's  well.     Both  the  Blank  and   Bur- 
rington wells  were  situated  on  ground  consid- 
erably lower  than  was  plaintiff's.     Prior  to 
the  sinking  of  these  last  two  wells,  plaintiff 
had  put  a  "goose  neck"  on  her  well,  about  3 
feet  or  31/2  feet  high,  and  the  water  was  dis- 
charged therefrom  with  great  force  and  con- 
stantly.    After   the    Blank    and   Burrington 
wells  were  sunk  and  had  commenced  to  flow, 
the  stream  from  plaintift"s  well  was  lighter, 
and    it    would    only    raise   three    feet   high. 
Plaintiff  then  lowered  the  goose  neck  so  that 
it  was  about  two  feet  high.     In  1S91  defend- 
ant city,  for  the  purpose  of  supplying  water 
to  its  citizens,  sunk  three  wells  on  its  grounds 
about  a  block  from   plaintiff's  well.     They 
were  all  four  inches  in  diametei-,  and  a  flow 
of  water  was  secured  from  each  of  them.    In 
the  fall  of  1891  the  city  erected  works  and 
pumping  machinery,  and  attached  the  same 
to  said  wells,  and  pumped  from  them  such 
quantities  of  water  as  were  needed  for  the 
city  supply.    After  the  city  wells  began  flow- 
ing, and  when  they  were  left  open,  the  water 
in  plaintiff's  well  ceased  to  flow,  and  the  wa- 
ter seems  to  have  stood  therein  at  about  the 
level  of  the  ground.     When  caps  were  put 
on  the  city  wells,  plaintiff's  well  would  flow. 
The  city  wells  were  on  lower  ground  than 
plaintiff's  well.     After  the  city  attached  its 
pumping  machinery  to  its  wells,  and  when  it 
was  pumping,  there  would  be  no  flow  at  all 
from  plaintiff's  well,  and  this  condition  of 
affairs  continued  to  exist  for  some  length  of 
time  after  the  city  ceased  pumping.     Some- 
times, after  the  city  had  been  pumping,  it 
would  be  two  or  three  hours,  and  at  other 
times  five  or  six  hours,  before  the  flow  of  wa- 
ter  from   plaintiff's  well  would   begin.     At 
times,  when  the  city  was  not  pumping,  the 
caps  would  be  removed  from  its  wells,  which 
would  release  the  water,   and  permit  it  to 
flow   and  waste,   and  during  these  periods 


there  was  no  flow  from  plaintiff's  well.     The 
Blank  and  Burrington  wells  appear  to  have 
been  flowing  most  of  the  time,  whether  in 
use    or  not.     Plaintiff's  well  was  permitted 
to  flow  when  it  would,  and  the  water  Avasted 
into  the  creek.     Prior  to  the  sinking  of  the 
city  wells,  plaintiff  had  used  the  water  from 
her  well  for  domestic  purposes,  and  for  giv- 
ing baths  in  her  bath  house,  and  had  sold 
some  of  the  Avater.     She  had  also  used  it  in 
washing  for  her  bath  house.     At  flrst  the  wa- 
ter was  carried  in  buckets  to  the  bath  house, 
but  afterwards  it  was  forced  by  steam  and 
mechanical   appliances   from   the   well   into 
tanks  in  the  bath  house.     These  appliances 
are  thus  described  by  a  witness:    "The  flrst 
siphon  was  used  to  raise  the  water  to  the 
tanks  for  heating.    The  siphon  was  attached 
to  the  pipe  about  two  feet  above  the  surface 
of  the  ground,  and  then  there  was  a  horizon- 
tal pipe  about  ten  feet  long  running  from  it  to 
the  well,  and  which  w'as  lowered  about  a  foot 
or  a  foot  and  a  half  after  the  city  wells  were  ■ 
put  in.     Steam  was  conducted  from  the  boiler 
through  a  pipe  into  the  siphon,  and  then  the 
water  was  forced  out  into  the  tank  and  dis- 
tributed."    There  is  a  conflict  in  the  testi- 
mony  as  to  what  efforts  plaintiff  made  to  se- 
cure Avater  from  her  well  after  the  city  wells 
were  sunk  and  being  operated;  but  we  think 
it  fairly  appears  that  she  put  in  a  larger  boil- 
er, and  made  certain  other  changes  in  the 
machinery,  and  she  claims  that  she  could 
not  draw  the  water  when  the  city  was  pump- 
ing, and  that  by  reason  of  the  sinking  of  the 
wells  by  the  city,  and  its  permitting  them  to 
flow,  and  by  pumping  water  from  them,  she 
was  deprived  of  water,  for  all  purposes,  for 
over  half  of  the  time.    The  defendant  claims 
that  plaintiff,  with  her  machinery  and  appli- 
ances, if  properly  operated-,  could  at  all  times 
have  supplied  herself  from  her  well  with  an 
abundance  of  water  for  all  purposes.    Plain- 
tiff claims  special   damages  in  the  sum  of 
$116.55,  expended  in  order  to  save   herself 
from  damages  by  reason  of  defendant's  acts. 
Defendant  denies  that  it  diverted  the  water 
from  plaintiff's  well,  and  avers  that  in  all 
respects  it,  in  sinking  its  wells  and  in  using 
them,  exercised  prudent  care  and  caution  to 
the  end  that  the  water  should  not  be  wasted, 
and  that  it  used  only  so  much  of  said  water 
as  was  necessary  to  supply  the  demands  and 
needs  of  said  city;    denies  that  its  use  of 
the  water  interfered  with  plaintiff's  use  of 
her  bath  house,  or,  if  it  did  so,  it  was  only 
for  one  or  two  hours  each  day,  and  while  the 
defendant  was  pumping  water  from  its  wells 
into  its  stand  pipe;    that  there  is  at  all  times 
in  the  subterranean  stream  ample  and  suf- 
ficient water    to    supply   all    the  wants    of 
plaintiff.     A  jury  trial  was  had,  and  a  ver- 
dict rendered  for  plaintiff  for  $475,  and  judg- 
ment was  entered  thereon,  from  which  de- 
fendant appeals. 

2.  While,  in  the  issues  as  made,  the  ques- 
tion as  to  these  wells  being  all  supplied  from 
the  same  subterranean  stream  is  in  conti'o- 


UXDEKGROUXD  WATERS. 


37 


versy,  still  the  cause  was  tried  upon  the 
theory  that  all  of  these  flowing  wells  were  in 
fact  supplied  from  one  and  the  same  sub- 
terranean stream,  and,  indeed,  so  far  as  ap- 
pears from  the  record,  it  would  seem  that 
the  indications  all  tend  to  sustain  that  theory. 
In  deciding  the  questions  presented,  we  nmst 
determine  by  what  rule  of  law  the  rights 
of  the  parties  to  this  unseen  stream  of  water 
are  to  be  measured.  Subterranean  water 
courses  are  of  two  classes:  First,  those 
whose  channels  are  known  or  defined;  and. 
second,  those  whose  channels  a_re  miknown 
and  undefined,— and  the  principles  of  law  gov- 
erning the  former  are  not  applicable  to  the 
latter.  Kin.  Irr.  §  48.  If,  in  fact,  or  by 
reasonable  inference,  it  is  known  that  a  sub- 
teiTanean  .sti'eam  of  water  flows  in  a  well- 
defined  channel,  capable  of  being  distinctly 
traced,  it  is  said  to  be  governed  by  the  rules 
of  law  applicable  to  streams  flowing  upon  the 
surface  of  the  earth.  Such  is  the  general 
rule,  to  which,  however,  we  think  there  are 
some  exceptions,  which  will  hereafter  be  con- 
sidered. Burroughs  v.  Saterlee,  67  Iowa,  400, 
25  N.  W.  SOS;  Kin.  Irr.  §  4S;  Black's  Pom. 
Water  Rights,  §  67;  Gould,  Waters,  §  2S1; 
Washb.  Easem.  p.  516;  Ang.  Water  Com'ses, 
§  112;  Dickinson  v.  Canal  Co.,  7  Exch.  282; 
Chasemore  v.  Richards,  2  Hmi.  &  N.  186; 
Cole  Silver  Min.  Co.  v.  Virginia  &  Gold  Hill 
Water  Co.,  1  Sawy.  470,  Fed.  Cas.  No.  2,9S9; 
Smith  v.  Adams,  6  Paige,  435;  Mason  v. 
Cotton,  4  Fed.  792;  Trustees,  etc.,  v.  You- 
mans,  50  Barb.  320;  Wheatley  v.  Baugh,  25 
Pa.  St.  531;  Dudden  v.  Guardians,  etc.,  1 
Hurl.  &  N.  627;  Frazier  v.  Brown.  12  Ohio 
St.  300;  Hanson  v.  3IcCue,  42  Cal.  303;  Strait 
V.  Brown,  16  Nev.  321;  Whetstone  v.  Bowser, 
29  Pa.  St.  59;  Saddler  v.  Lee,  00  Ga.  45; 
Acton  V.  Blundell,  12  Mees.  &  W.  324;  Halde- 
man  v.  Bruckhai't,  45  Pa.  St.  514;  Hale  v. 
McLea,  53  Cal.  578.  The  general  rule  gov- 
erning surface  streams  is  that  "prima  facie 
every  proprietor  on  each  bank  of  a  river  is 
entitled  to  the  land  covered  with  the  water 
to  the  middle  of  the  thread  of  the  stream, 
or,  as  is  commonly  expressed,  'usque  ad 
filum  aquae.'  la  vu'tue  of  this  ownership, 
he  has  a  right  to  the  use  of  the  water  flow- 
ing over  it,  in  its  natiu'al  current,  without 
diminution  or  abstraction;  but,  strictly  speak- 
ing, he  has  no  property  in  the  water  itself, 
but  a  simple  use  of  it  as  it  passes  along." 
Tyler  v.  Wilkinson,  4  Mason,  400,  Fed.  Cas. 
No.  14,312;  Kin.  Irr.  •§  59,  and  cases  cited. 
In  other  words,  every  riparian  owner  has  a 
right  to  use  the  water  in  the  stream  as  it 
passes  along,  and  an  equal  right  with  those 
above  and  below  him  to  the  natiu-al  flow  of 
the  water  in  its  accustomed  channel,  with- 
out unreasonable  detention,  or  substantial 
diminution,  either  in  quality  or  quantity,  and 
none  of  such  owners  have  the  right  to  use  the 
water  to  the  prejudice  of  the  others,  unless 
such  a  right  has  been  acquired  by  license, 
gi'ant,  or  prescription.  Kin.  Irr.  §  60;  Gould, 
Waters,  §§  213,  214;    Ang.  Water  Com-ses,  § 


93;  Heath  v.  Williams,  25  Me.  209;  43  Am. 
Dec.  275,  and  notes;  Garwood  v.  Railroad 
Co.,  83  N.  Y.  405;  Ware  v.  Allen,  140  Mass. 
513,  5  N.  E.  629,  and  notes;  Ilailroad  Co.  v. 
Miller,  112  Pa.  St.  34,  3  Atl.  7S0,  and  note; 
Gould,  Waters,  §  204;  3  Kent,  Comm.  439; 
Blanchard  v.  Baker,  8  Greenl.  200;  Bealey  v. 
Shaw,  6  East,  208,  214;  Pope  v.  Kinman,  54 
Cal.  3;  Plumleigh  v.  Dawson,  1  Gilman,  544; 
Wheatley  v.  Chrisman,  24  Pa.  St.  302;  Weiss 
v.  Steel  Co.,  13  Or.  496,  11  Pac.  255. 

Now,  each  riparian  owner  has  a  right  to 
use  the  water  of  a  surface  sti-eam  for  or- 
dinary or  natural  uses,  and,  vmder  certain 
circumstances,  for  artificial  uses,  such  as  for 
irrigation  and  the  like;  and  the  better  law 
seems  to  be  that  he  may  use  the  water  for 
his  natm'al  and  ordinary  wants,  regardless  of 
the  effect  uix»n  other  proprietors  on  the 
stream;  that  is,  as  we  understand  the  rule, 
one  riparian  proprietor  may,  for  his  natm-al 
wants,  if  necessary,  use  all  of  the  water  in  a 
surface  sti'eam,  to  the  exclusion  of  every 
other  such  proprietor,  certainly  so  as  against 
the  other  proprietor  using  the  water  for  artifi- 
cial purposes.  Pom.  Rip.  Rights,  §125;  Spence 
V.  McDonough,  77  Iowa,  402,  42  N.  W.  371; 
Kin.  Irr.'§§  65,  06;  Gould,  Waters,  §  205;  Ang. 
Water  Com-ses,  §  93;  Stanford  v.  Felt,  71 
Cal.  24^,  10  Pac.  900.  In  case,  however,  such 
a  proprietor  puts  the  water  to  an  extraordi- 
nary or  ai'tificial  use,  he  must  do  so  in  such 
a  manner  as  not  to  interfere  with  its  lawful 
use  by  others  above  or  below  him  upon  the 
same  stream.  Kin.  Irr.  §  65;  Ang.  Water 
Coiu'ses,  §  93.  As  to  extraordinary  or  arti- 
ficial uses,  the  rights  of  all  proprietors  on 
the  stream  are  equal  (Goifld,  Waters,  §  206. 
and  cases  cited;  Dumont  v.  Kellogg,  29  Mich. 
422);  and  the  artificial  \ise  is  held  to  be  al- 
ways subordinate  to  the  natm-al  use.  If 
there  is  not  water  enough  to  more  thau  sup- 
ply the  natural  wants  of  the  several  ripai-iau 
owners,  none  can  use  the  water  from  the 
stream  for  artificial  purposes.  Ordinary  or 
natm-al  uses  have  been  held  to  include  the 
use  for  domestic  pm-poses,  including  house- 
hold pui-poses,  such  as  cleansing,  washing, 
and  supplying  an  ordinary  number  of  horses 
or  stock  with  water,  and  it  is  said  that  nat- 
ural uses  are  limited  to  the  purposes  above 
stated.  Kin.  Irr.  §  66,  and  cases  cited;  Black. 
Pom.  Rip.  Rights,  §  138,  and  citations;  Gould. 
Waters,  §  205;  Ang.  Water  Courses,  §  93; 
Garwood  v.  Raihoad  Co.,  83  N.  Y.  405;  Stan- 
ford v.  Felt,  71  Cal.  250,  16  Pac.  900.  Now. 
what  is  a  reasonable  use  of  the  water  of  a 
surface  stream  for  artificial  purposes?  Clear- 
ly, such  a  vise  as  permits  the  return  of  the 
water  used  to  tlie  stream  in  its  natiu*al  chan- 
nel, without  corruption  or  sensible  diminution 
in  quantity.  By  this  is  not  meant  that  all 
the  water  must  be  returned  to  the  stream,  be- 
cause in  the  use  some  will  necessarily  be  lost 
or  wasted.  "VMiat  is  or  constitutes  such  rea- 
sonable use  must  be  determined  in  view  of 
the  size  and  capacity  of  the  stream,  the  wants 
of  all  other  proprietors,  the  fall  of  the  water, 


38 


WHAT  IS  REAL  PROPERTY. 


the  character  of  tiie  soil,  the  number  of  pro- 
prietors to  be  supplied,  and  all  other  circum- 
stances. 'In  no  case,  however,  is  reasonable 
use  to  be  determined  in  view  of  the  neces- 
sities or  business  of  any  one  proprietor,  but 
the  rights  of  each  in  the  stream  for  artificial 
uses  are  to  be  determined  in  view  of  all  of 
the  circumstances  as  affecting  all  of  the  pro- 
prietors. Kin.  Irr.  §  76,  and  cases  cited; 
Jones  V.  Adams,  19  Nev.  78,  6  Pac.  442;  Para 
Rubber-Shoe  Co.  v.  City  of  Boston,  139  Mass. 
153,  29  N.  E.  544.  As  one  who  uses  water 
from  a  well  supplied  from  a  subterranean 
stream  cannot  return  to  such  stream  the 
water  he  may  use,  or  any  part  of  it,  it  follows 
that  the  rxiles  of  law  governing  the  use  of 
water  from  sm-face  sti-eams  cannot  in  all  re- 
spects be  said  to  control  in  a  case  like  that 
at  bar.  As  to  a  surface  stream,  the  riparian 
owner  may  use  the  entire  stream  for  ex- 
traordinary purposes,  provided  he  season- 
ably, and  without  stesibly  diminishing  its 
volume  or  impairing  its  quality,  returns  it  to 
its  accustomed  channel.  But  in  this  case  he 
could  have  no  such  right,  else  he  might  for 
ai-tiflcial  pm-poses  exhaust  the  entire  stream, 
to  the  detriment  of  other  well  owners  situat- 
ed thereon,  and  who  would  be  entitled  to  the 
use  of  the  water  for  domestic  pm-poses,  as 
against  any  artificial  use.  It  seems  to  be 
conceded  that  the  use  of  the  water  by  the 
city  was  an  unusual  and  extraordinary  use; 
that  it  was  not  what  is  spoken  of  in  the 
books  as  a  natural  use,  for,  if  it  was,  then 
tlie  city  would,  under  the  authorities  cited, 
be  entitled  to  use  all  of  the  water  if  it  need- 
ed it.  Was  not  plaintiff's  use  of  the  water 
an  extraordinary  and  artificial  use,  in  so  far 
as  she  used  the  same  for  the  purpose  of  op- 
erating her  bath  house  and  steam  washer 
for  washing  bathing  towels?  We  think  it 
was.  If  such  a  use  can  be  treated  as  a 
natural  use,  as  for  domestic  purposes  only, 
then  she  might  thus  exhaust  the  entire 
stream,  to  the  damage  of  all  others  having 
the  right  to  use  it  even  for  natural  uses.  Just 
what  is  or  is  not  an  artificial  use  cannot  be 
defined  so  as  to  cover  all  cases  that  may 
arise,  but  it  is  not  easy  to  discern  the  dif- 
ference in  principle  between  the  use  of  water 
for  manufacturing  purposes,  which  is  usual- 
ly held  to  be  an  artificial  use,  and  its  use 
for  operating  a  bath  house.  Neither  use  is 
for  domestic  piu-poses,  as  ordinarily  under- 
stood. Applying  the  law  to  the  facts  of  this 
case,  we  think  it  is  clear  that,  for  any  dam- 
age done  by  defendant  to  plaintiff  in  de- 
priving her  of  the  free  and  accustomed  use  of 
the  water  in  her  well  for  the  usual  domestic 
purposes,  the  city  would  be  liable,  because,  in 
any  event,  its  use  of  the  water  was  for  ex- 
traordinary and  artificial  purposes.  Whether 
defendant  would  be  liable  for  using  its  wells 
in  the  supplying  of  water  to  the  inhabitants 
of  the  city,  thereby  at  times  interfering  with 
plaintiff's  supply  of  water  for  the  purpose  of 
operating  her  bath  house,  depends  upon  the 
reasonableness  of  defendant's  use  of  its  wells. 


As  to  this,  we  have  already  seen  that  the 
reasonableness  of  the  use  is  not  to  be  meas- 
m-ed  by  the  wants  or  necessities  of  the  de- 
fendant, but  it  is  to  be  determined  in  view 
of  all  the  facts  and  circumstances,  and  in 
view  of  the  number  and  wants  of  other  well 
owners  on  the  stream.  It  does  not  appear 
that  there  are  any  wells  tapping  this  sub- 
terranean stream  other  than  those  heretofore 
mentioned;  nor  does  it  appear  with  any  de- 
gree of  certainty  as  to  what  were  the  wants 
or  needs  of  the  owners  of  the  Blank  and 
Bm-rington  wells.  It  appears  that  defendant 
pumped  from  its  wells  from  200  to  1,000  gal- 
lons of  water  each  day,  and  that  when  the 
pumping  was  going  on,  and  for  several  hours 
afterwards,  no  water  flowed  from  plaintiff's 
well.  As  near  as  can  be  ascertained  from 
the  evidence,  plaintiff  required  about  as  much 
water  for  her  bath  house  as  the  city  was 
using.  The  city's  plant  was  new.  It  had  as 
yet  but  few  consumers  of  water.  Each  party, 
for  artificial  pm-poses,  had  an  equal  right 
to  use  the  water,  and  each  was  bound  to  so 
exercise  that  right  as  to  cause  the  other  the 
least  inconvenience  and  damage.  From  the 
nature  of  the  case,  neither  of  the  parties 
being  able  to  return  the  water  to  the  stream 
from  whence  it  came,  the  reasonableness  of 
the  use  is  to  be  determined  in  view  of  that 
as  well  as  other  facts.  Both  having  an  equal 
right  to  the  water  for  artificial  uses,  neither 
could  so  exercise  that  right  as  to  wholly  de- 
prive the  other  of  its  use  at  any  time.  We 
think  the  evidence  shows  that  the  city  not 
only  deprived  the  plaintiff  of  the  use  of  her 
well  for  domestic  purposes  for  much  of  the 
time,  but  it  also  deprived  her  entirely  of  its 
use  for  a  portion  of  the  time  for  her  bath 
house. 

3.  Plaintiff  and  her  husband,  as  witnesses 
on  the  stand,  were  permitted,  against  defend- 
ant's objection,  to  testify  as  to  the  profits 
made  from  the  bath  business.  Other  wit- 
nesses, also,  against  defendant's  objections, 
testified  to  the  use  and  extent  of  the  patron- 
age of  the  bath  house.  It  is  said  that  evi- 
dence of  profits  is  too  remote,  is  speculative, 
and  not  the  proper  measure  of  damages. 
Doubtless,  in  such  a  case,  the  rental  value 
of  the  bath  house  for  the  time  plaintiff  was 
deprived  of  its  use  by  defendant's  acts  would 
be  the  measure  of  her  damages.  But  how 
is  rental  value  to  be  shown  in  such  a  case  if 
not  from  the  character  and  extent  of  the  use 
of  the  building?  In  Sutherland  on  Dam- 
ages (volume  1,  §  70)  it  is  said:  "The  law, 
however,  does  not  require  impossibilities, 
and  cannot  therefore  demand  a  higher  de- 
gree of  certainty  than  the  nature  of  the  case 
admits.  If  a  regular  and  established  busi- 
ness is  wrongfully  interrupted,  the  damages 
thereto  can  be  shown  by  proving  the  usual 
profits  for  a  reasonable  time  anterior  to  the 
wrong  complained  of."  In  Wolcott  v.  Mount. 
36  N.  J.  Law,  262,  it  is  said  that  the  earlier 
cases,  "both  in  English  and  American  courts, 
concur  in  excluding,  as  well  in  actions  in 


UNDERGROUND  WATERS. 


39 


tort  as  in  actions  on  contracts,  from  the  dam- 
ages recoverable,  profits  which  mijjht  have 
been  realized  if  the  injui*y  had  not  been  done 
or  the  contract  had  been  performed.  This 
abridgrment  of  the  power  of  courts  to  award 
compensation  adequate  to  the  injury  suf- 
fered has  boon  removed  in  actions  of  tort. 
The  wrongdoer  must  answer  in  damages  for 
those  results,  injurious  to  other  parties, 
which  are  presumed  to  have  been  within  his 
contemplation  when  the  wrong  was  done." 
This  rule  is  well  supported  by  the  authori- 
ties. Gibson  v.  Fischer,  68  Iowa,  31,  25  N.  W. 
914;  Sedg.  Dam.  p.  SO,  note  1;  Hamer  v. 
Knowles,  30  L.  J.  Exch.  102;  Bridge  v.  Fisk, 
23  N.  H.  171;  Chandler  v.  Allison,  10  Mich. 
460;  Wood,  Nuis.  892;  Dubois  v.  Glaub.  52 
Pa.  St.  238;  Fultz  v.  Wycoff,  25  Ind.  321; 
Park  V.  Railroad  Co.,  43  Iowa,  036;  Simmons 
v.  Brown,  5  R.  I.  299;  White  v.  Jlosely,  8 
Pick.  356;  Gladfelter  v.  Walker,  40  Md.  3; 
Goebel  v.  Hough,  26  Minn.  252,  2  N.  W.  847; 
City  of  Terre  Haute  v.  Huduut,  112  Ind.  542, 
13  k  E.  686;  Holden  v.  Lake  Co.,  53  N.  H. 
552.  In  the  case  of  City  of  Terre  Haute  v. 
Hudnut,  supra,  this  question  was  elaborately 
discussed,  and  the  authorities  collected.  It 
is  there  said,  in  speaking  of  past  profits: 
"What  exists  in  the  present  or  has  existed 
in  the  past  cannot  be  considered  a  matter 
of  speculation."  It  was  said  by  Seevers,  J., 
in  Gibson  v.  Fischer,  supra:  "Besides  this, 
the  rental  value  must  depend  on  and  be 
measured  by  the  extent  of  the  profits.  If 
there  w-as  absolute  certainty  in  human  evi- 
dence, the  one  should  amount  to  precisely  the 
same  as  the  other.  When  the  profits  are 
ascertained,  the  value  of  the  use  or  rental 
value  is  certainly  known."  We  conclude, 
then,  that  the  evidence  as  to  past  profits 
was  properly  admitted,  not  as  fixing  the 
measure  of  damages,  but  to  assist  the  jury 
in  estimating  the  damages.  In  determining 
damages  in  a  case  like  that  at  bar,  what  evi- 
dence would  be  adduced  which  would  better 
enable  the  jury  to  determine  plaintiff's  dam- 
ages than  to  show  what  the  business  had 
earned?  Rental  value  is  of  necessity  de- 
pendent upon  what  can  be  made  out  of  a 
business  or  property  for  the  uses  for  which 
it  is  devoted  or  adapted.  These  net  earnings 
covering  a  period  of  several  months  before 
the  injury,  while  by  no  means  conclusive 
as  to  the  rental  value,  furnish  a  fairly  safe 
basis  from  which  to  estimate  the  damages. 
If,  as  is  contended,  the  erection  of  defend- 
ant's waterworks  resulted  in  the  building 
and  opening  of  other  bath  houses,  or  in  the 
putting  in  of  bath  tubs  in  private  residences, 
whereby  plaintiff's  patronage  would  have 
been  lessened,  such  facts  could  have  been 
shown.  For  the  same  reasons,  it  was  proper 
to  show  the  extent  and  character  of  the  pat- 
ronage of  plaintiff's  bath  house. 

4.  It  is  urged  that  past  profits  should  not 
have  been  shown,  because  it  appeared  that, 
by  a  moderate  expenditure  of  money,  plain- 
tiff could  have  saved  herself  from  loss,  and 


that  it  was  her  duty  so  to  do.  Mill  Co.  v. 
Greer,  49  Iowa.  497;  Douglass  v.  Stephens, 
IS  Mo.  362;  Railway  Co.  v.  Finnigan,  21  111. 
646;  Loker  v.  Damon,  17  Pick.  284;  Thomp- 
son V.  Shattuck,  2  Mete.  (Ma.ss.)  615.  In 
this  case  much  testimony  was  offered  touch- 
ing the  ability  of  plaintiff,  by  the  aid  of 
mechanical  appliances,  to  raise  the  water 
from  the  well  when  it  was  lowered  by  de- 
fendant's acts.  We  think  there  is  a  fair 
conflict  in  the  evidence  as  to  whether,  by  a 
reasonable  effort  and  expenditure  of  mon- 
ey, plaintiff  could  have  avoided  the  dam- 
age resulting  from  defendant's  unwarranted 
diversion  of  the  water.  The  question  was 
properly  submitted  to  the  jury,  and  they  have 
said,  in  effect,  that  she  could  not  have  done 
so.  The  finding  is  not  without  support  in 
the  evidence,  and  we  cannot  disturb  it. 

5.  Error  is  assigned  on  the  action  of  the 
court  in  refusing  to  permit  defendant  to 
show  that  it  offered  to  furnish  her  free  of 
charge  all  the  water  she  could  use  in  run- 
ning her  business.  This  offer  was  made  to 
plaintiff's  husband.  The  husband  operated 
the  business  in  his  name,  and  appears  to 
have  had  entire  control  of  it,  as  well  as  of 
plaintiff's  interest,  relating  to  her  well. 
While  it  may  be  conceded  that  it  was  plain- 
tiff's duty  to  use  reasonable  efforts  as  to 
time  and  expenditure  of  money  to  lessen  or 
limit  her  injury,  we  do  not  think  she  was 
called  upon  to  take  water  from  defendant's 
pipes.  Her  right  was  to  take  water  from 
her  own  well,  and,  even  if  it  was  incum- 
bent upon  her  to  take  water  from  the  city 
free  to  limit  her  injury,  her  damages  could 
not  be  affected  by  her  failing  to  do  so,  in  the 
absence  of  any  showing  as  to  whether  or  not 
the  cost  to  her  of  taking  the  water  from 
the  city  would  be  reasonable.  There  is  noth- 
ing in  the  record  which  shows,  or  tends  to 
show,  what  expense  she  would  have  been 
put  to,  if  she  took  the  water  from  the  city, 
in  connecting  with  the  mains  and  in  pro- 
viding the  necessary  appliances  for  such  a 
change;  so  that,  in  any  event,  defendant  has 
not  made  such  a  showing  as  would  require 
plaintiff's  acceptance  of  the  city's  offer.  The 
evidence  was  properly  excluded. 

6.  Complaint  is  made  that  the  court,  in  its 
instructions,  ignored  the  rule  as  to  contribu- 
tory negligence,  and  improperly  refused  an 
instruction  asked,  to  the  effect  that  if,  during 
the  time  for  which  plaintiff  complained,  she 
allowed  her  own  well  to  flow  and  waste  wa- 
ter, and  such  waste  of  water  contributed  to 
the  injury  complained  of.  she  could  not  re- 
cover. In  support  of  the  claim  that  this 
instruction  should  have  been  given,  we  are 
referred  to  the  case  of  Ferguson  v.  Manu- 
facturing Co.,  77  Iowa,  576,  42  N.  W.  448, 
and  other  cases.  That  was  a  case  where  the 
contributory  negligence  was  pleaded  by  de- 
fendant. There  is  no  such  issue  in  the  case 
at  bar,  and,  for  that  reason  alone,  the  in- 
struction was  properly  refused.  Further- 
more, on  principle,  the  cases  are  clearly  dis- 


40 


WHAT  IS  REAL  PROPERTY. 


tinguishable.  No  injury  would  have  result- 
ed to  plaintiff  if  defendant's  wells  had  been 
so  arranged  as  to  have  discharged  their  water 
at  the  same  level  as  plaintiff's,  and  if  the  city- 
had  not  pumped  from  its  wells.  The  waste  of 
water  from  the  wells  discharging  at  the  same 
level  would  not  have  affected  the  flow  from 
any  of  them,  or,  if  it  did,  the  effect  would 
have  been  the  same  as  to  all  of  them. 
Again,  the  evidence  does  not  shov.^  that 
plaintiff's  injury  would  have  been  in  any 
way  lessened  by  stopping  the  flow  of  her 
well  when  it  did  flow  and  was  not  in  use. 
In  any  view,  there  was  no  error  in  giving 
and  refusing  the  instructions  complained  of. 

7.  The  court  submitted  to  the  jury  the 
question  as  to  whether  the  flow  of  water 
from  the  Blank  and  Burrington  wells  af- 
fected the  flow  from  plaintiff's  well.  It  is 
said  that  the  evidence,  without  conflict, 
shows  that  the  flow  of  these  wells  did  affect 
plaintiff's  well;  that  it  was  not  a  question  of 
dispute.  That  is  true,  but  the  evidence  did 
also  tend  to  show  that  the  flow  of  these 
other  wells  did  not  materially  affect  the 
plaintiff's  use  of  her  well.  We  think  the  in- 
struction complained  of  is  quite  as  favorable 
to  the  defendant  as  it  had  a  right  to  ask. 

8.  In  the  sixth  paragraph  of  the  charge, 
the  jury  were  told  that  the  defendant,  under 
certain  circumstances,  which  were  stated, 
would  be  liable  for  the  cost  of  appliances 
purchased  by  plaintiff  in  her  attempt  to  pro- 
cure water  from  her  well  after  the  flow  there 
from  had  been  impaired  by  the  defendant's 
acts.  Defendant  contends  it  would  only  be 
liable  for  the  value  of  the  use  of  such  ap- 
pliances while  plaintiff  retained  possession 
of  the  property.  It  does  not  appear  that 
these  appliances  added  to  the  value  of  the 
property.  In  fact,  the  evidence  shows  that 
with  their  use  plaintiff  could  not  obtain  water. 
Nor  do  we  think  it  is  shown  what  the  value 
of  said  appliances  was,   if  anything,   after 


plaintiff's  use  of  them.  The  latter  part  of 
the  insti-uction  reads  thus:  "If,  however,  the 
water  could  not  have  been  obtained  from 
said  well  by  the  use  of  such  appliances,  at 
reasonable  and  moderate  cost,  then  the  plain- 
tiff would  be  entitled  to  recover  as  damages 
the  value  of  the  diminished  use  of  said  prop- 
erty during  the  time  that  she  was  entitled  to 
the  use,  which  would  be  from  the  date  that 
the  water  was  diverted  from  her  well  as  al- 
leged, to  the  date  of  the  sale  and  surrender 
of  the  property,  which  was  on  March  15, 
1892,  also  the  reasonable  cost,  expenses  of 
such  appliances  as  were  used  and  placed 
therein  to  diminish  the  damages  to  the  use; 
and  the  defendant  would  only  be  liable  for 
so  much  thei-eof  as  its  acts  had  caused  the 
damage  to  the  plaintiff."  It  is  said  that  the 
instruction  should  have  read  "diminution  of 
the  use,"  instead  of  "diminished  use."  Tech- 
nically, it  may  be  true  that  the  words 
"diminished  use"  should  be  held  to  refer  to 
the  value  of  the  use  remaining  after  the 
diminution  had  taken  place.  In  view  of  the 
wording  of  the  entire  instruction  and  of  the 
other  instructions  given,  we  think  the  error, 
if  any,  was  without  prejudice.  The  jury 
could  not  from  all  of  the  instructions  have 
failed  to  understand  what  was  the  correct 
measure  of  damages. 

9.  Complaint  is  made  of  the  giving  and  re- 
fusal to  give  other  instructions.  W^e  dis- 
cover no  en'or  in  the  matters  complained  of. 

Finally,  it  is  urged  that  the  verdict  is  ex- 
cessive, and  contrai'y  to  the  law  and  the  evi- 
dence. From  what  has  already  been  said. 
it  will  be  seen  that  we  think  the  jury  was 
justified  in  finding  against  the  defendant. 
The  verdict  was  not  excessive,  and  was  war- 
ranted by. the  testimony.  The  case  is  so  un- 
usual in  its  facts,  and  so  important  in  prin- 
ciple, that  we  have  given  it  a  most  thor- 
ough investigation  and  consideration.  Af- 
firmed. 


BOILDER  TKEES. 


41 


LYMAN  V.  HALE. 

(11  Gonn.  177.) 

Supreme  Court  of  Errors  of  Connecticut.    1836. 

Hungerford  &  Cone,  for  plaintiff  in  error. 
Johnson  &  Cliapman,  for  defendant  in  error. 

BISSELL,  J.  This  writ  of  error  is  reserved 
for  our  advice;  and  the  principal  question  rais- 
ed and  discussed,  is,  whether,  upon  the  facts 
disclosed  on  the  record,  the  plaintiff  and  de- 
fendant are  joint  owners,  or  tenants  in  com- 
mon, of  the  tree  in  controversy. 

It  is  admitted  that  the  tree  stands  upon  the 
plaintiff's  land,  and  about  four  feet  from  the 
line  dividing  his  land  from  that  of  the  defend- 
ant. It  is  further  admitted  that  a  part  of  the 
branches  overhang,  and  that  a  portion  of  the 
roots  extend  into,  the  defendant's  land.  If, 
then,  he  be  a  joint  owner  of  the  tree  with  the 
plaintiff,  he  is  so  in  consequence  of  one  or  the 
other  of  these  facts,  or  of  both  of  them  united. 
It  has  not  been  insisted  on,  in  the  argument, 
that  the  mere  fact,  that  some  of  the  branches 
overhang  the  defendant's  land,  creates  such  a 
joint  ownership.  Indeed,  such  a  claim  could 
not  have  been  made,  with  any  well-grounded 
hope  of  success.  It  is  opposed  to  all  the  au- 
thorities, and  esi>ecially  to  that  on  which  the 
defendant  chiefly  relies.  "Thus,"  it  is  said, 
"if  a  house  overhang  the  land  of  a  man,  he 
may  enter  and  throw  down  the  part  hanging 
over,  but  no  more;  for  he  can  abate  only  that 
part  which  constitutes  the  nuisance."  2  Rolle, 
144,  1,  30;  Eex  v.  Pappineau,  2  Strange,  688; 
Cooper  V.  Marshall,  1  Burrows,  267;  Welsh  v. 
Nash,  8  East,  394;  Dyson  v.  Collick,  5  Barn. 
&  Aid.  600  (7  Serg.  &  L.  205);  Com.  Dig.  tit. 
"Action  on  the  Case  for  a  Nuisance,"  D,  4. 
And  in  Waterman  v.  Soper,  1  Ld.  Raym.  737, 
the  case  principally  relied  on  by  the  defend- 
ant's counsel,  it  is  laid  down:  "That  if  A. 
plants  a  tree  upon  the  extremest  limits  of  his 
land,  and  the  tree  growing  extend  its  root  into 
the  land  of  B.  next  adjoining,  A.  and  B.  are 
tenants  in  common  of  the  tree.  But  if  all  the 
root  grows  in  the  land  of  A.,  though  the  boughs 
overshadow  the  land  of  B.,  yet  the  branches 
follow  the  root,  and  the  property  of  the  whole 
is  in  A." 

The  claim  of  joint  ownership,  then,  rests  on 
the  fact  that  the  tree  extends  its  roots  into  the 
defendant's  land,  and  derives  a  part  of  its 
nourishment  from  his  soil.  On  this  ground, 
the  charge  proceeded,  in  the  court  below;  and 
on  this,  the  case  has  been  argued  in  this  court. 
We  are  to  inquire,  then,  whether  this  ground 
be  tenable.  The  only  cases  relied  upon,  in  sup- 
port of  the  principle,  are,  the  cases  already  cit- 
ed from  Ld.  Raymond,  and  an  anonymous  case 
from  Rolle's  Reports.  2  Rolle,  255.  The  prin- 
ciple is,  indeed,  laid  down  in  several  of  our 
elementary  treatises.  1  Swift,  Dig.  104;  3  Star- 
kie,  Ev.  1457,  note;  Bull.  N.  P.  84.  But  the 
only  authority  cited  is  the  case  from  Ld.  Ray- 
mond. And  it  may  well  deserve  consideration, 
whether  that  case  is  strictly  applicable  to  the 
ea.se  at  bar;    and  whether  it  carries  the  prin- 


ciple so  far  as  is  necessary  to  sustain  the  pres- 
ent defence.  That  case  supposes  the  tree  to  be 
planted  on  the  "extremest  Umit" — that  is,  on 
the  utmost  point  or  verge — of  A.'s  land.  Is  it 
not  then  fairly  inferable,  from  the  statement 
of  the  case,  that  the  tree,  when  grown,  stood 
in  the  dividing  line?  And  in  the  case  cited 
from  Rolle,  the  tree  stood  in  the  hedge,  divid- 
ing the  land  of  the  plaintiff  from  that  of  the 
defendant.  Is  it  the  doctrine  of  these  cases, 
that  whenever  a  tree,  growing  upon  the  land 
of  one  man,  whatever  may  be  its  distance  from 
the  line,  extends  any  portion  of  its  roots  into 
the  land  of  another,  they  therefore  become  ten- 
ants in  common  of  the  tree?  We  think  not; 
and  if  it  were,  we  cannot  assent  to  it.  Because, 
in  the  firet  place,  there  would  be  insurmounta- 
ble difiiculties  in  reducing  the  principles  to  prac- 
tice; and,  in  the  next  place,  we  think  the  weight 
of  authorities  is  clearly  the  other  way. 

How,  it  may  be  asked,  is  the  principle  to  be 
reduced  to  practice?  And  here,  it  should  be 
remembered,  that  nothing  depends  on  the  ques- 
tion whether  the  branches  do  or  do  not  over- 
hang the  lands  of  the  adjoining  proprietor.  All 
is  made  to  depend  solely  on  the  inquiry,  wheth- 
er any  portion  of  the  roots  extend  into  his  land. 
It  is  this  fact  alone,  which  creates  the  tenancy 
in  common.  And  how  is  the  fact  to  be  ascer- 
tained? 

Again,  if  such  tenancy  in  common  exist,  it  is 
diffused  over  the  whole  tree.  Each  owns  a  cer- 
tain proix)rtion  of  the  whole.  In  what  propor- 
tion do  the  respective  parties  hold?  And  how 
are  these  proportions  to  be  determined?  How 
is  it  to  be  ascertained  what  part  of  its  nourish- 
ment the  tree  derives  from  the  soil  of  the  ad- 
joining proprietor?  If  one  joint  owner  appro- 
priate all  the  products,  on  what  principle  is  the 
account  to  be  settled  between  the  parties? 

Again,  suppose  the  line  between  adjoining 
proprietors  to  run  through  a  forest,  or  grove. 
Is  a  new  rule  of  property  to  be  introduced,  in 
regard  to  those  trees  growing  so  near  the  line 
as  to  extend  some  portions  of  their  roots  across 
it?  How  is  a  man  to  know  whether  he  is  the 
exclusive  owner  of  trees,  growing,  indeed,  on 
his  own  land,  but  near  the  line;  and  whether  he 
can  safely  cut  them,  without  subjecting  himself 
to  an  action? 

And  again,  on  the  principle  claimed,  a  man 
may  be  the  exclusive  owner  of  a  tree,  one  year, 
and  the  next,  a  tenant  in  common  with  another; 
and  the  proportion  in  which  he  owns  may  be 
varying  from  year  to  year,  as  the  tree  pro- 
gresses in  its  growth. 

It  is  not  seen  how  these  consequences  are  to 
be  obviated,  if  the  principle  contended  for  be 
once  admitted.  We  think  they  are  such  as  to 
furnish  the  most  conclusive  objections  against 
the  adoption  of  the  principle.  We  are  not  pre- 
pared to  adopt  it,  unless  compelled  to  do  so  by 
the  controlling  force  of  authority.  The  cases  re- 
lied upon  for  its  support  have  been  examined. 
We  do  not  think  them  decisive.  We  will  very 
briefly  review  those,  which,  in  our  opinion,  es- 
tablish a  contrary  doctrine. 

In  the  case  of  Masters  v.  Pollie,  2  Rolle,  141, 


42 


WHAT  IS  REAL  PROPERTY. 


it  was  adjudged,  that  where  a  tree  grows  in 
A.'s  close,  though  the  roots  grow  in  B.'s,  yet 
the  body  of  the  tree  being  in  A.' a  soil,  the  tree 
belongs  to  him.  The  authority  of  this  case  is 
recognized  and  approved  by  Littledale,  J.,  in 
the  case  of  Holder  v.  Coates,  1  Moody  &  M. 
112  (22  Serg.  &  L.  264).  He  says:  "I  remem- 
ber, when  I  read  those  cases,  I  was  of  opinion 
that  the  doctrine  in  the  case  of  Masters  v.  Pol- 
lie  was  preferable  to  that  in  Waterman  v.  So- 
per;  and  I  still  think  so." 

The  same  doctrine  is  also  laid  down  in  Millen 
V.  Fandrye,  Poph.  161,  163;  Norris  v.  Baker, 
3  Bulst.  178;  see,  also,  20  Vin.  Abr.  417;  1 
Chit.  Gen.  Prac.  652.  We  think,  therefore, 
both  on  the  ground  of  principle  and  authority, 
that  the  plaintiff  and  defendant  are  not  joint 
owners  of  the  tree;  and  that  the  charge  to  the 
jury,  in  the  court  below,  was,  on  this  point, 
erroneous. 

It  is,  however,  contended,  that  although  the 
charge  on  this  point  was  wrong,  there  ought 
not  to  be  a  reversal,  as  upon  another  ground 
the  defendant  was  clearly  entitled  to  judgment 
in  his  favor. 

It  is  urged,  that  land  comprehends  everything 
in  a  direct  line  above  it;  and  therefore,  where 
a  tree  is  planted  so  near  the  line  of  another's 
close  that  the  branches  overhang  the  land,  the 


adjoining  proprietor  may  remove  them.  And 
in  support  of  this  position,  a  number  of  authori- 
ties are  cited.  The  general  doctrine  is  readily 
admitted;  but  it  has  no  applicability  to  the  case 
under  consideration.  The  bill  of  exceptions 
finds,  that  the  defendant  gathered  the  pears 
growing  on  the  branches  which  overhung  hia 
land,  and  converted  them  to  his  own  use,  claim- 
ing a  title  thereto.  And  the  charge  to  the  jury 
proceeds  on  the  ground  that  he  has  a  right  so 
to  do.  Now,  if  these  branches  were  a  nuisance 
to  the  defendant's  land,  he  had  clearly  a  right 
to  treat  them  as  such,  and  as  such  to  remove 
them.  But  he  as  clearly  had  no  right  to  con- 
vert either  the  branches  or  the  fruit  to  his  own 
use.  Beardslee  v.  French,  7  Conn.  125;  Welsh 
V.  Nash,  8  East,  394;  Dyson  v.  Collick,  5  Barn. 
&  Aid.  600  (7  Serg.  &  L.  205);  2  Phil.  Ev.  138. 
On  the  whole,  we  are  of  opinion  that  there 
is  manifest  error  in  the  judgment  of  the  court 
below,  and  that  it  be  reversed. 

The  other  judges  ultimately  concurred  in  this 
opinion;  WILLIAMS,  C.  J.,  having  at  first 
dissented,  on  the  ground  of  a  decision  of  the 
superior  court  in  Hartford  county  (Fortune  v. 
Newson),  and  the  general  understanding  and 
practice  in  Connecticut  among  adjoining  pro- 
prietors.   Judgment  reversed. 


BORDER  TREES. 


43 


ROBINSON  V.  CLAPP. 

(32  Atl.  939,  65  Conn.  305.) 

Supreme  Court  of  Errors  of  Connecticut.     Jan. 
8,  1895. 

Appeal  from  court  of  common  pleas,  New 
Haven  county;    Cable,  Judge. 

Suit  by  John  A.  Robinson  against  John  W. 
Clapp  to  enjoin  defendant  from  erecting  a 
certain  house.  There  was  judgment  for 
plaintiff,  and  defendant  appeals.    Reversed. 

Hem-y  G.  Newton  and  J.  Birney  Tuttle.  for 
appellant.     Earlliss  P.  Arvine,  for  appellee. 


FENN,  J.  Upon  the  complaint  of  the 
plaintiff,  claiming  an  injunction  to  restrain 
the  defendant  from  doing  certain  acts  on  the 
defendant's  own  land,  adjacent  to  land  of 
the  plaintiff,  the  court  of  common  pleas  for 
New  Haven  county  found  the  following  facts: 

On  September  21,  1883,  one  William  Waite 
was,  and  for  a  long  time  had  been,  the  own- 
er in  fee  of  certain  premises  on  the  northerly 
side  of  Bradley  street  in  the  city  of  New  Ha- 
ven, 61  feet  front  on  said  street,  and  98  feet 
deep.  A  dwelling  house  stood  on  the  wester- 
ly part  of  said  lot.  On  said  day  said  Wil- 
liam Waite,  through  a  third  person,  conveyed 
to  his  wife,  Elizabeth,  the  westerly  part  of 
said  lot,  40  feet  front,  on  which  said  dwelling 
house  stood.  On  August  23,  1888,  the  said 
40-foot  lot  was,  by  warranty  deed,  conveyed 
to  the  plaintiff  by  an  agent  of  Mr.  and  Mrs. 
Waite,  to  whom  it  had  been  previously  con- 
veyed for  that  purpose.  On  October  6,  1888, 
William  Waite  quitclaimed  his  right,  title, 
and  interest  in  the  remaining  21  feet  of  the 
original  lot  to  the  defendant.  On  the  bound- 
ary line  between  the  premises  of  the  plain- 
tiff and  the  defendant  there  stands  a  maple 
tree  of  about  40  years'  growth,  about  16 
inches  in  diameter,  and  with  a  branch  exten- 
sion of  from  40  to  50  feet.  This  tree  is  a 
valuable  one  to  the  plaintiff  as  a  shade  tree 
and  ornament,  and  shades  a  part  of  the  plain- 
tiff's premises.  The  boundary  line  runs  sub- 
stantially through,  the  middle  of  the  trunk  of 
said  tree.  At  the  time  that  said  William 
Waite  erected  said  dwelling  house,— which 
was  more  than  20  years  previous  to  the 
plaintiff's  purchase,— he  dug  and  connected 
with  said  dwelling  house,  by  "pipes,  a  well, 
and  used  said  well  of  water  as  appurtenant 
to  said  house  during  the  period  of  his  own- 
ership, up  to  and  within  a  short  time  previ- 
ous to  said  purchase.  For  some  five  years 
previous  to  the  plaintiff's  purchase,  and  up 
to  the  time  when  said  Waite  ceased  to  use 
said  well,  such  use  was  by  means  of  a  curb 
and  bucket.  The  plaintiff  has  never  used 
said  well,  which  has  been  covered  up  ever 
since  he  has  owned  the  premises.  The  de- 
fendant does  not  intend  to  destroy  the  well. 
At  the  time  of  the  plaintiff's  purchase,  the 
well  was  connected  with  the  house  by  moans 
of  pipes,  and  there  was  a  concrete  walk  lead- 


ing from  the  house  to  the  well,  across  said 
boundary  line,  and  continuing  into  that  part 
of  the  premises  owned  by  the  defendant, 
along  the  extent  of  the  flagstone  that  crowns 
the  well.  This  stone,  which  is  about  5%  feet 
in  length,  extends  some  31^  feet  upon  the 
defendant's  land.  The  well  is  21/2  feet  in  di- 
ameter, and  adjoins  the  line,  but  is  practi- 
cally all  of  it  upon  the  land  of  the  defend- 
ant. On  the  trial  the  plaintiff  and  said  Wil- 
liam Waite  both  testilied  that  a  few  days 
previous  to  the  plaintiff's  purchase,  and 
while  negotiations  were  pending,  said  Waite 
told  the  plaintiff  that  said  well  went  with 
the  house,  and  would  be  sold  to  him;  and 
this  statement  was  a  substantial  inducement 
CO  the  plaintiff  in  making  said  purchase.  To 
the  admission  of  this  evidence  the  defendant 
objected,  but  the  c-ourt  overruled  the  objec- 
tion, and  admitted  the  evidence,  the  defend- 
ant duly  excepting,  and  the  court  found  the 
facts  to  be  as  testified.  The  plaintiff's  prin- 
cipal sitting  room  and  the  room  over  it.  the 
dressing  room,  are  on  the  oast  side  of  the 
house,  and  derive  their  light  solely  from  a 
bay  window,  having  its  windows  on  the  east- 
erly, northeasterly,  and  southeasterly  sides 
thereof.  Said  rooms  are  so  inclosed  on  all 
sides  by  other  parts  of  tlie  structure  that  no 
other  means  of  light  than  from  the  east  side 
is  possible,  without  a  substantial  reconstruc- 
tion of  that  part  of  the  building.  The  east 
face  of  said  bay  window  is  between  five  and 
six  feet  beyond  the  line  of  the  side  wall  of 
the  house  from  which  such  window  projects, 
and  is  five  feet  from  said  boundarj'  line. 
The  stairway  and  hall  of  the  dwelling  house 
is  lighted  by  a  stained  glass  window  in  the 
easterly  side  of  the  house,  and  has  also  a 
glass  in  the  south  door.  The  defendant 
threatens  and  intends  to  build,  and  has  made 
a  contract  for  the  building  of,  a  dwelling 
house  to  extend  down  along  the  boundary 
line  for  a  distance  of  58  feet  from  a  point 
about  6  feet  from  said  Bradley  street,  the 
wall  of  which  is  to  be  about  20  feet  high, 
and  threatens  to  remove  so  much  of  the  tree 
as  is  on  his  side  of  said  boundary  line.  The 
construction  of  a  dwelling  house  on  the  line, 
as  the  defendant  intends  to  construct  it, 
would  cover  the  well,  and  that  portion  of  the 
premises  on  his  side  of  the  line  on  which 
said  tree  stands;  and  the  removal  of  that 
portion  of  the  tree  which  the  defendant 
threatens  to  remove  would  destroy  the  life 
of  the  whole  tree.  Such  constiniction  would 
also  deprive  the  plaintiff  of  the  supply  of 
light  which  has  come  across  said  21  feet 
now  owned  by  the  defendant,  and  would 
make  it  necessary  for  the  plaintiff  to  light  his 
sitting  room  and  dressing  room  with  gas,  or 
some  other  light,  in  the  daytime,  in  order 
to  obtain  sufficient  light  for  the  reasonable 
use  of  the  rooms.  At  the  time  of  purchase 
by  the  plaintiff,  and  at  the  time  of  the  pur- 
chase by  the  defendant,  there  was  no  fence 
or  other  visible  sign  of  demarcation  marking 
said  boundary  line.    And  said  original  tract 


i4 


WHAT  IS  REAL  PROPERTY. 


of  land  owned  by  William  Waite  was,  at  the 
time  of  tlie  erection  of  said  dwelling  house 
thereon,  and  ever  afterwards  until  the  exe- 
cution of  the  deeds  above  mentioned,  an  un- 
divided tract  of  land.  The  defendant,  previ- 
ous to  his  purchase,  had  lived  within  100  feet 
of  the  premises,  and  was  fully  acquainted 
with  the  same.  Upon  these  facts  the  court, 
overruling  the  claims  of  the  defendant,  ren- 
dered judgment  for  the  plaintiff,  enjoining 
and  restraining  the  defendant  "from  such  in- 
terference with  the  tree  mentioned  in  the 
complaint  as  will  desti'oy  or  injure  the  same, 
and  such  interference  with  the  well  men- 
tioned in  the  complaint  as  will  deprive  the 
plaintiff  of  the  use  of  the  same;  also  from 
erecting  any  building  upon  the  premises  de- 
scribed as  the  property  of  the  defendant,  so 
near  as  to  exclude  the  light  from  the  plain- 
tiff's dwelling  house."  The  defendant's  ap- 
peal assigns  11  reasons,  some  of  which  are 
not  important.  Taken- as  a  whole,  however, 
they  present,  in  substance,  four  alleged 
grounds  of  error  which  we  deem  it  neces- 
sary to  consider.  First,  in  restraining  the  de- 
fendant from  interference  with  the  tree;  sec- 
ond, with  the  well,  including  the  admission 
of  evidence;  third,  from  excluding  the  light; 
fourth,  that  the  judgment  rendered  is  uncer- 
tain. We  will  examine  each  of  these,  and 
in  the  order  above  indicat*'d. 

First,  in  reference  to  the  tree.  Upon  the 
subject  of  the  rights  of  the  parties  in  a  tree 
situated  as  this  is  it  is  said  in  1  Washb.  Real 
Prop.  §  7a:  "The  law  as  to  growing  trees  may 
be  regarded  so  far  peculiar  as  to  call  for  a 
more  extended  statement  of  its  rules  as  laid 
down  by  different  courts.  *  *  *  in  the  first 
place,  trees  which  stand  wholly  within  the 
boundary  line  of  one's  land  belong  to  him, 
although  tlieir  roots  and  branches  may  extend 
into  the  adjacent  owner's  land.  *  *  *  But 
the  adjacent  owner  may  lop  off  the  branches 
or  roots  of  such  trees  up  to  the  line  of  his  land. 
If  the  tree  stand  so  nearly  upon  the  dividing 
line  between  the  lands  tliat  portions  of  its 
body  extend  into  each,  the  same  is  the  prop- 
erty in  common  of  the  landowners.  And 
neither  of  them  is  at  liberty  to  cut  the  tree 
without  the  consent  of  the  other,  nor  to  cut 
away  the  part  which  extends  into  his  land.  If 
he  thereby  injures  the  common  property  in  the 
tree."  This  is  the  doctrine  of  our  own  court 
in  Lyman  v.  Hale,  11  Conn.  177,  cited  by 
Washburn.  See,  also,  26  Am.  &  Eng.  Enc, 
Law,  p.  558.  We  may  therefore  limit  our 
investigation  to  the  inquiry  as  to  the  logical 
application  of  the  principles  of  that  case  to 
the  present  one.  In  that  case  the  tree  stood 
upon  the  plaintiff's  land,  but  its  branches  ex- 
tended some  distance  across  the  line,  and  some 
of  its  roots  ran  into  the  defendant's  ground. 
The  action  was  trespass  quare  clausum  fregit 
for  entering  upon  the  plaintiff's  land  and  pick- 
ing up  pears,  the  fruit  of  the  tree.  The  de- 
fendant claimed  to  be  either  tenant  in  com- 
mon or  joint  owner  with  the  plaintiff,  or  ex- 
clusive owner  of  the  pears  gathered,   which 


fell     on    his    own    land    from    overhanging 
branches.    The  claim  of  joint  ownership  urged 
rested  on  the  fact  that  the  roots  extended  into 
the  defendant's  ground,  and  that  the  tree  de- 
rived a  part  of  its  nourishment  from  his  soil. 
In   reviewing  and  disapproving  the  authori- 
ties cited  in  support  of  such  claim,  this  court 
said:     "Is  it  the  doctrine  of  these  cases  that 
whenever  a  tree  growing  upon  the   land  of 
one  man,  whatever  may  be  its  distance  from 
the  line,  extends  any  portion  of  its  roots  into 
the  lands  of  another,  they  therefore  become 
tenants  in  common  of  the  tree?     We  think 
not;    and,  if  it  were,  we  cannot  assent  to  it. 
Because,   in  the   first  place,   there  would  be 
insurmountable   difficulties     in    reducing   the 
principle  to  practice;    and,  in  the  next  place, 
we  think  the  weight  of  authorities  is  clearly 
the  other  way.    How,  it  may  be  asked,  is  the 
principle  to  be  reduced  to  practice?    And  here 
it  should  be  remembered  that  nothing  depends 
upon  the  question  whether  the  branches  do  or 
do   not  overhang  the  lands  of  the  adjoining 
proprietor.    All  is  made  to  depend  solely  upon 
the  inquiry  whether  any  poiUon  of  the  roots 
extend  into  his  land.     It  is  this  fact  alone 
which  creates  the  tenancy  in  common.     And 
how  is  the  fact  to  be  ascertained?    Again,  if 
such  tenancy  in  common  exist,  it  is  diffused 
over  the  whole  tree.     Each  owns  a  certain 
proportion  of  the  whole.    In  what  proportions 
do  the  respective  parties  hold?    And  how  are 
these  proportions  to  be  determined?     How  is 
it  to  be  ascertained  what  part  of  its  nourish- 
ment the  tree  derives  from   the  soil  of  the 
adjoining  proprietor?    If  one  joint  owner  ap- 
propriate all  the  products,  on  what  principle 
is  the  account  to  be  settled  between  the  par- 
ties?    Again,  suppose   the  line  between   ad- 
joining proprietor's  to  run  through  a  forest  or 
grove.    Is  a  new  rule  of  property  to  be  intro- 
duced  in  regard  to   those  trees   growing  so 
near  the  line  as  to  extend  some  portions  of 
their  roots  across  it?    How  is  a  man  to  know 
whether  he  is  the  exclusive  owner  of  trees^ 
growing,  indeed,  on  his  own  land,  but  near  the 
line;    and  whether  he  can  safely  cut  them, 
without  subjecting  himself  to  an  action?    And 
again,  on  the  principle  claimed,  a  man  may 
be  the  exclusive  owner  of  a  tree  one  year, 
and  the  next  a  tenant  in  common  with  an- 
other;   and  the  proportion  in  which  he  owns 
may  be  vai-ying  from  year  to  year,  as  the  tree 
progresses  in  its  growth.    It  is  not  seen  how 
these  consequences  are  to  be  obviated,  if  the 
principle  contended  for  be  once  admitted.   We 
think  they  are  such  as  to  furnish  the   most 
conclusive  objections  against  the  adoption  of 
the  principle."    We  have  quoted  so  much  at 
length,  because  it  must  be  obvious  that  by 
far  the  greater  part  of  this  most  cogent  rea- 
soning applies  with  equal  force  against  the 
docti'ine  of  a  tenancy  in  common  of  a  tree 
standing  upon  the  dividing  line  between  two 
properties,  and  extending  its  body,  no  matter 
in  what  proportion,  into  each.     It  is  true,  the 
opinion   appears  to   concede  that  in   such   a 
case  the  tenancy  would  exist,  and  such  is  the 


BORDER  TREES. 


45 


raralliar  statement  of  the  treatises  and  opin- 
iiitis.  The  expression  is  probably  well  enouyh 
and  sufficicntlj'  accurate  for  practical  purposes, 
but  it  is  not  entirely  correct,  as  appears  to  ua 
to  be  clearly  shown  in  an  article  in  the  Albany 
Law  Journal  (volume  10,  p.  2'2G),  which  points 
out  that  where  a  tree  stands  partly  on  the 
lands  of  each  of  two  adjoining  proprietors, 
the  possession  of  each  must  be  always  confined 
to  that  portion  of  the  tree  which  is  on  his  side 
of  the  boundary  line,  in  view  of  the  greater 
dignitj'  and  permanence  of  real-estate  tenure, 
as  compared  with  the  temporary  and  chang- 
ing nature  of  gi'owiug  timber. 

In  addition  to  what  we  have  said,  it  must 
be  apparent  that  the  very  nature  of  things  dif- 
ferentiates such  a  so-called  common  interest 
from  an  ordinary  tenancy  in  common,  either 
of  real  or  of  personal  property.  In  the  case 
of  a  tree  like  the  one  in  question,  yielding  no 
fruit,  of  trifling  value  for  wood,  if  cut,  of  no 
value  while  standing,  except  for  ornament  or 
shade,  what  relief  by  any  remedy,  legal  or 
equitable,  provided  for  ordinary  tenants  in 
common,  can  a  part  owner  of  such  tree,  to 
whom  its  continued  existence  is  of  no  ad- 
vantage but  an  injury,  obtain?  Can  he  call 
ifpon  the  other  part  owner  to  account  for  the 
benefit  which  he  has  derived  from  such  orna- 
ment or  shade?  Could  he,  in  this  state,  pro- 
cure a  partition  of  the  growing  tree  as  real 
estate,  under  Gen.  St.  §  1304?  And  if  he  did, 
would  not  the  lines  of  his  own  and  the  ad- 
jacent land  divide  the  tree  as  they  did  before, 
leaving  the  rights  of  the  parties  identical  in 
effect  With  what  they  were  before?  Could  he 
obtain  a  sale  of  the  tree  under  section  1307, 
either  as  real  estate  or  personal  property,  that 
would  caiTy  the  right  to  have.it  destroyed  or 
removed?  If  it  be  conceded,  as  it  must  be, 
that  he  could  do  none  of  these,  it  will  be  evi- 
dent, we  think,  that  the  tenancy  in  common 
In  a  tree  is  of  a  peculiar  nature,  if  there  be 
such  a  tenancy  at  all.  It  would  really  seem 
to  come  to  this:  that  each  of  the  landowners 
upon  whose  land  any  part  of  a  trunk  of  a  tree 
stands  has  an  interest  in  that  tree,  a  property 
in  it,  equal,  in  the  first  instance,  to,  or  per- 
haps rather  identical  with,  the  part  whicb  is 
upon  his  land;  and,  in  the  next  place,  embra- 
cing the  right  to  demand  that  the  owner  of  the 
other  portion  shall  so  use  his  part  as  not  unrea- 
sonably to  injure  or  destroy  the  whole.  There 
may,  it  is  true,  be  a  difficulty  in  applying  such 
a  principle  as  this,  and  such  difficulty  appears 
to  exist  in  the  present  case.  It  might  per- 
haps fairly  be  urged  that  to  prevent  the  de- 
fendant from  removing  that  portion  of  the 
trunk  of  the  tree  upon  his  own  land— thereby 
depriving  him  of  the  opportunity  to  build  upon 
it  as  desired— would  be  likely  to  produce  a 
greater  irreparable  injury  to  the  defendant 
than  such  removal  and  the  consequent  de- 
stiiiction  of  the  life  of  the  tree  would  cause  the 
plaintiff,  and  that,  therefore,  the  equitable 
remedy  of  injunction  (which  is  not  adapted 
finally  to  adjust  the  rights  of  the  parties) 
should  have  been  refused,  and  the  contestants 


left  to  settle  such  rights  in  methods  pertain- 
ing to  the  legal,  and  not  the  chancery,  juris- 
diction. We  are  inclined  to  think  such  ele- 
ments of  discretion  enter  into  this  matter  that 
we  ought  not  to  disturb  the  conclusion  of  the 
trial  court  upon  it.  But  we  think  the  law  is 
already  well  settled  In  this  state,  as  well  as 
elsewhere,  and,  as  before  stated,  that  where 
the  branches  of  a  tree  extend  over  an  adjacent 
owner's  land,  he  may  lop  them  off  up  to  the 
line,  even  though  that  were  practically  to  the 
trunk  of  the  tree.  In  this  case  a  portion  of 
the  trunk  is  on  the  defendant's  land,  and  the 
branch  extension  of  40  to  50  feet,  as  found, 
presumably  reaches  across  it.  That  he  should 
have  less  right  to  lop  these  tranches  because 
.  he  owns  a  portion  of  the  tree  than  if  he  owned 
none  of  it,  appeal's  to  us  to  be  unreasonable. 
The  injunction  should  not  extend  further  than 
to  restrain  the  defendant  from  cutting  any 
portion  of  the  ti'unk  and  any  further  cutting 
of  the  branches  or  of  the  roots  than  he  might 
lawfully  have  done  had  the  ti-unk  stood  wholly 
upon  the  plaintiff's  land,  but  i-eaching  to  the 
defendant's  line.  If  in  fact  the  ti'unk  divides 
itself,  as  the  tree  extends  upwards,  into  two 
or  more  parts,  of  similar  size,  with  more  of 
a  peipendicular  than  horizontal  extension, 
each  of  those  parts  should  be  regarded  as  a 
portion  of  the  trunk. 

In  respect  to  the  well,  there  was,  we  think, 
error  in  the  action  of  the  court,  both  in  ref- 
erence to  the  admission  of  evidence  and  in 
granting  the  injunction,  whether  the  latter 
action  be  or  be  not  regarded  as  influenced 
by  such  evidence.  Concerning  the  testi- 
mony, the  plaintiff  seeks  to  justify  its  re- 
ception as  being  a  declaration  of  the  actual 
vendor  at  the  time  of  the  sale,  and  cites 
Norton  v.  Pettibone,  7  Conn.  323;  Doming 
V.  Carrington,  12  Conn.  5;  Smith  v.  Martin, 
17  Conn.  400;  Ramsbottom  v.  Phelps,  IS 
Conn.  28.5.  None  of  these  cases,  however, 
support  his  contention.  For,  waiving  the 
point  that  the  title  to  the  premises  now 
owned  by  the  plaintiff  was  not  at  the  time 
of  such  conversation  in  the  declarant,  Wil- 
liam Waite,  it  is  evident  that  the  state- 
ment to  the  plaintiff  "that  the  well  went 
with  the  house,  and  would  be  sold  to  him," 
was  not  in  its  nature  a  declaration  adveree 
to  the  declarant's  title.  It  was  not  an  as- 
sertion as  to  his  title  at  all.  There  was  no 
question  then,  nor  is  there  now,  that  the 
declarant  then  had  title  to  the  land  now  be- 
longing to  the  defendant  on  which  the  well 
is  situated.  It  was  therefoie  simply  a  state- 
ment of  what  interest  or  easement  in  land 
not  to  be  conveyed  "belonged  to"  and  "would 
be  sold"  with  the  land  to  be  conveyed. 
Whether,  by  the  legal  effect  of  the  deed  to 
the  plaintiff,  the  well,  or  any  right  in  it, 
was  conveyed  to  him  as  an  appurtenance  or 
otherwise,  is  an  inquiiy  to  which  the  evi- 
dence under  consideration  is  not  relevant. 
If  not  so  conveyed,  whether  the  plaintiff 
has,  or  ever  had  before  waiting  so  long, 
a  cause  of  action  for  the  reformation  of  the 


46 


WHAT  IS  REAL  PROPERTY. 


instrument,  so  as  to  include  the  well  as  a 
part   of   the  grant,   is   another   and   distinct 
question.     In  this   case,   however,   to  which 
William  Waite  is  not  a  party,  in  which  no 
claim  for  reformation  is  made,  but  only  the 
title  of  the  plaintiff  as  derived  from  the  deed 
as  it  stands  is  counted  upon,   such   inquiry 
cannot  be  entered  into.     Nor  would  any  con- 
ceivable answer  to  it  affect  the  decision  of 
the  point  as  to  the  admission,  in  this  case, 
of    the    evidence    now    under    consideration. 
There   is  no   claim  that  the  defendant   had 
any  notice  of  this  conversation,  and  its  use 
to  impair  the  title  of  a  bona  fide  purchaser, 
for  full  consideration,  without  notice,  actual 
or  constructive,  of  an  adjoining  piece  of  land, 
is  clearly  improper.    The  fact  that  the  defend- 
ant derived  his  title  from  a  quitclaim  deed  is 
entirely  immaterial.     "In  this  state  a  quit- 
claim deed  is  a  primary  conveyance,  vesting 
in  the  releasee  all  the  interest,  even  in  fee, 
which  the  releasor  has  so  conveyed.     As  a 
conveyance,  it  is  of  as  much  force  as  a  war- 
ranty deed,  differing  from  it  chiefly   in  the 
superadded   covenants,   which   may   operate 
by  way  of  estoppel  upon  a  future-acquired 
interest,    or    may     secure     the     covenantee 
against  a  bad  or  defective  title."     Sherwood 
V.  Barlow,  19  Conn.  476.     It  might  even  be 
said  that  there  is   more   reason  why  a  re- 
leasee in  a  quitclaim  deed  should  be  protect- 
ed from  the  operation  of  secret,  unrecorded 
incumbrances  on  the  property,  where  he  pur- 
chased in  good  faith,  and  for  full  considera- 
tion,   than     such    a   purchaser    whose    title 
comes  to  him  accompanied   with  covenants 
for   his    protection.     But,    further,    in    refer- 
ence   to    the    injunction,    there    was    error. 
The   plaintiff  claims  the  record   shows  that 
the  well,  at  the  time  of  his  purchase,  was 
appurtenant  to  the  dwelling  house,  and  nec- 
essary  thereto.     We    do    not  so   understand 
the  finding.     At  the  time  the  dwelling  was 
erected   the   well   was   dug,    and   connected 
with   it   by  pipes.     It  was   used   as   appur- 
tenant to  the  house,  either  by  pipes   or  by 
curb  and  bucket,  up  to  and  within  a  short 
time  previous  to  the  plaintiff's  purchase.    It 
was  not  so  used  at  the  time  of  the  purchase. 
For  the  last  five  years  of  its  actual  use  the 
curb  and  bucket  had  been  employed.     At  the 
time   of   the   purchase   that   also   had   been 
abandoned,  and  the  well  was  covered  by  a 
flagstone.     The  pipes  at  that  time  connected 
the  well  with  the  house.     Whether  they  do 
so  still  is  not  found.     The  plainciff  has  never 
used  the  welL    The  defendant  aoes  not  in- 
tt'ud  to  destroy  it,   but  the  construction  of 
his    dwelling    house    would    cover    it.     Why 
should  he  not  so  cover  it,  if  he  desired?     It 
had  ah-eady  been  covered  when  he  bought, 
and  it  so  remains.     It  is  not  found  that  the 
well  has  ever  been,  or  ever  is  likely  to  be, 
necessary,  or  even  useful,   to  the   plaintiff. 
If  it  ever  has  been,  why  has  he  never  used 
it?     If  he  objects  to  its  being  covered,  why 
did  he  receive  his  deed  while  it  was  in  that 
condition?    Why   has   he  suffered   it  to   re- 


main so  ever  since?  But  he  wishes,  or  he 
may,  perhai)s,  wish  hereafter,  to  revive  the 
use  of  the  pipe.  It  is  entirely  upon  his  own 
land,  and  reaches  a  well  which  the  defend- 
ant has  no  intention  to  destroy.  How,  so 
far  as  the  record  discloses,  will  the  pro- 
posed act  of  the  defendant  affect  him  in 
such  use? 

We   come  now  to  the   question  most  ex- 
tensively considered  on  both  sides  in  the  ar- 
gument,—that  in  relation  to  light.    The  great 
practical  importance  of  the  subject  present- 
ed will  be  our  justification  for  a  somewhat 
extended  examination.     By  the  common  law, 
in  England,  the  right  to  light  and  air  over 
the  land  of  another  could  be  claimed  in  cer- 
tain  cases   by   prescription,   and   in   certain 
others   by   implication,  or  what   was  called 
"implied  grant."     If  the  common  law,  as  to 
the  prescription,  ever  existed  in  Connecticut, 
it  dofes  so  no  longer.     Gen.  St.  §  2970.     But 
the  plaintiff  claims  that  the  law  as  to  im- 
plied grants  of  light  and  air  does  exist,  and 
should    be   recognized   in  this    state.     That 
doctrine    the    plaintiff    states    as    follows: 
"When  a  person,  having  erected  a  building 
upon  a  part  of  his  land,  and  having  placed 
therein    windows    opening    upon    the    other 
part  of  his  land,  sells  the  building,  with  the 
land  on  which  it  stands,  the  right  to  the  con- 
tinual use  and  enjoyment  of  light  and  air 
through  these  windows  passes  to  the  gi-antee 
by  implication."     This  asserted  rule  is  a  par- 
ticular  instance   of   the    application   of   the 
doctrine    of    the   creation    of    easements    of 
various    kinds, — the   principal  of   which   are 
perhaps  ways  and  rights  of  passage  by  im- 
plication,—which  doctrine  is  said  to  rest  up- 
on the  application  of  the  maxims:    "A  gran- 
tor cannot  be  allowed  to  derogate  from  his 
own  grant,"  and  "A  grantor  is  presumed  to 
convey,   so   far   as  it   is   in   his    possession, 
whatever    is    necessary   for   the    reasonable 
enjoyment  of  the  thing  conveyed."     Again, 
it  is  said  to  be  based  upon  the  supposed  in- 
tention of  the  parties,  as  deduced  from  the 
surrounding  circumstances;  the  essential  ele- 
ment of  which  is  the  situation,  relation,  and 
condition   of  the  granted  and  retained  por- 
tions of  the  land.     If  we  assume  this  doc- 
trine, generally  speaking,  to  be  correct,  the 
inquiry  arises  as  to  its  proper  limitations; 
and  to   what  would  be   such  in  any   given 
case,  provided  the  question  of  its  application 
arose  between  the  grantee  and  his  grantor, 
who  still  retained  the  other  portion  of  the 
land,  there  must  be  added  an  additional  con- 
sideration,   provided,   as   in   the   present   in- 
stance, such  original  grantor  does  not  so  re- 
tain, but  has  afterwards  parted  with,  such 
remaining  portion  to  another  person,  who  is 
a  bona  fide  purchaser  for  value.     The  policy 
upon  which  our  registration  laws  as  to  con- 
veyances   of    real    estate    is    based,    would 
seem  to  make  it  essential  that,  in  order  to 
claim  such  easement  against  such  purchaser, 
it  must  be  of  a  character  so  evidently  neces- 
sary   to    the   reasonable    enjoyment   of   the 


BORDER  TREES. 


47 


{^ranted  premises,  so  continuous  in  its  na- 
ture, so  plain,  visible,  and  open,  so  mani- 
fest from  the  situation  and  relation  of  tlie 
two  tracts,  as  to  fairly  and  clearly  indicate 
to  a  prospective  purchaser  of  the  reserved 
portion  the  intention  of  the  parties  to  the 
previous  sale  that  it  should  remain,  and  to 
make  such  purchaser  chargeable  with  knowl- 
edge that  the  law,  based  on  justice,  that 
equity,  founded  on  good  conscience,  would 
forbid  him,  in  case  of  his  pmx-hase,  so  to 
occupy  the  lot  as  to  interfere  with  such  ease- 
ment. 

The  general  doctrine  of  easements  by  Im- 
plied grants,  and  the  ground  upon  which  it 
is  based,  is  well  stated  by  this  court  in  Col- 
lins V.  Prentice,  15  Conn.  39,  43,  in  refer- 
ence to  private  ways.  In  speaking  of  such 
ways,  the  court,  by  Waite,  J.,  said:  "It  is 
^,ell  settled  as  a  part  of  the  common  law  of 
England  that  if  a  man  having  a  close,  to 
which  he  has  no  access  except  over  his  other 
lands,  sell  that  close,  the  grantee  shall  have 
a  way  to  it,  as  incident  to  the  grant.  *  »  • 
And  although  doubts  have  formerly  been  ex- 
pressed upon  the  subject,  it  seems  now  to  be 
as  well  settled  that,  if  the  grantor  had  reserv- 
ed that  close  to  himself,  and  sold  his  other 
lands,  a  right  of  way  would  have  been  re- 
served. *  *  *  The  way,  in  the  one  case,  in 
contemplation  of  law,  is  granted  by  the 
deed,  and,  in  the  other  case,  reserved.  And 
although  it  is  called  a  way  of  necessity,  yet 
in  strictness  the  necessity  does  not  create 
the  way,  but  merely  furnishes  evidence  as  to 
the  real  intention  of  the  parties;  for  the  law 
will  not  presume  that  it  was  the  intention 
of  the  parties  that  one  should  convey  land 
to  the  other  in  such  manner  that  the  grantee 
could  derive  no  benefit  from  the  conveyance, 
nor  that  he  should  so  convey  a  portion  as  to 
deprive  himself  of  the  enjoyment  of  the  re- 
mainder. The  law,  under  such  circumstan- 
ces, will  give  effect  to  the  grant  according 
to  the  presumed  intent  of  the  parties.  A 
way  of  this  kind  is  limited  by  the  necessity 
which  creates  it."  These  principles  in  refer- 
ence to  private  ways— especially  the  limita- 
tion of  such  easements  to  cases  of  actuxil  ex- 
isting necessity— are  further  stated  in  Pierce 
V.  Seileck,  18  Conn.  321;  Seeley  v.  Bishop, 
19  Conn.  12S;  Woodworth  v.  Raymond,  51 
Conn.  70.  In  Massachusetts,  in  reference  to 
such  ways,  it  was  said  in  Buss  v.  Dyer,  125 
Mass.  291:  "It  is  a  well-established  and  fa- 
miliar rule  that  deeds  are  to  be  construed  as 
meaning  what  the  language  employed  in 
them  imports,  and  that  extrinsic  evidence 
may  not  be  introduced  to  contradict  or  af- 
fect them.  And  it  would  seem  that  nothing 
could  be  clearer  in  its  meaning  than  a  deed 
of  a  lot  of  land,  described  by  metes  and 
bounds,  with  covenants  of  warranty  against 
incumbrances.  The  great  exception  to  the 
application  of  this  rule  to  the  constiiiction 
of  deeds  is  in  the  case  of  ways  of  necessity, 
where,  by  a  fiction  of  law.  there  is  an  im- 
plied reservation  or  grant  to  meet  a  special 


emergency  on  grounds  of  public  policy,  as  it 
has  been  said,  in  order  that  no  land  should 
be  left  inaccessible  for  purposes  of  cultiva- 
tion.   This  fiction  has  been  extended  to  cases 
of  ea.sements  of  a  different  character,  where 
the  fact  has  been  established  that  the  ease- 
ment was  necessary  to  the  enjoyment  of  the 
estate  in  favor  of  which  it  was  claimed.    In 
this    commonwealth,    grants    by    implication 
are    limited    to    cases    of    strict    necessity." 
Coming  now  directly  to  the  subject  of  the 
application   of   this   doctrine  or   "fiction"   to 
light  and  air,  it  was  said  by  Gould,  J.,   in 
Ingraham   v.   Hutchinson,    2   Conn.    598,    in 
speaking  of  what  are  called  "ancient  lights": 
"Besides,  to  what  extent  does  this  privilege 
or  protection   go,   where   it  actually   exists? 
Does  the  adjoining  proprietor  lose  all  right 
to  erect  a  building  upon  his  own  land,  when- 
ever it  would  in  the  least  degree  diminish 
the  light  of  a  privileged  window?    Is  he  pre- 
cluded from  building  at  a  distance  of  three 
rods,  or  one  rod,  or  even  at  a  less  distance, 
from    his    neighbor's    windows?     I    am    not 
aware  that  the  rule  was  ever  claimed  to  ex- 
tend so  far.    It  goes  no  further,  as  I  under- 
stand   it,    than   to   protect   windows,    which 
have  been  long  used,  from  being  obstructed, 
or,   as  it   is  often  expressed    in  the   books, 
'stopped  up.' "    But  the  plaintiff  claims  that 
a  much  broader  extension  of  the  rule,  in  case 
of  an   implied  grant,   was   distinctly  recog- 
nized in  this  state  in  Bushnell  v.  Proprietors, 
31  Conn.  150,  a  case  upon  which  the  plaintiff 
much  relied.     In  that  case  it  appeared  that 
the  plaintiff  had  formerly  conveyed  to   the 
defendant,  an  ore-bed  company,  the  right,  in 
washing  their  ore  upon  a  small  stream  that 
ran  through  his  land,  to  dischai-ge  dirt  upon 
his    "meadow    lot,"    lying    below    upon    the 
stream.    A  great  quantity  of  dirt  accumulat- 
ed on  the  meadow  lot,  filling  the  bed  of  the 
stream,  and  raising  the  lot  above  the  adjoin- 
ing land,  so  that  the  dirt  washed  upon  the  lot, 
spread,  and  was  can'ied  upon  the  plaintiffs 
pasture  lot  adjoining.     The  plaintiff  had  own- 
ed this  lot  at  the  time  the  deed  was  given. 
In  holding  that  the  defendant  was  not  liable 
for  any  damage  to  the  pasture  lot  resulting 
naturally  from  the  discharge  of  dirt  upon  the 
meadow  lot,  this  coiu-t  (Dutton,  J.)  said:    "A 
grantor  is  presimied  to  intend  to  convey,  so 
far  as  it  is  in  his  possession,  whatever  is  nec- 
essary to   the   reasonable  enjoyment   of   the 
thing  conveyed.    It  is  well-settled  law  that  if 
the  owner  of  a  lot  conveys  it  to  another  per- 
son while  there  is  upon  it  a  dwelling  house 
with  windoA\'S  opening  upon  another  lot  of 
the  grantor,  neither  he  nor  his  heirs  nor  as- 
signs can  erect  a  building  upon  the  second  lot 
so  near  as  to  exclude  the  light  from  the  dwell- 
ing house."    Now,  it  is  evident,  as  the  opinion 
itself  states  (page  157),  that  the  question  for 
discussion   in    Bushnell   v.   Proprietors    was, 
what   rights  were  in  fact  conveyed  by   the 
deed?    This  was  a  question  solely  of  interpre- 
tation, in  which  the  principles  of  the  doctrine 
of  implied  grants,   which  do  not,  and  have 


48 


WHAT  IS  REAL  PROPERTY. 


never  been  claimed  to,  rest  upon  interpreta- 
tion of  language  used,  were  in  no  sense  in- 
volved. The  entire  discussion  of  the  doctrine, 
as  well  as  the  illustration  cited,  was,  there- 
fore, wholly  obiter.  Nevertheless,  both  the 
principle  and  the  illustration,  although  vouch- 
ing as  authoi-ity  two  cases,  both  of  which 
have  been  distinctly  overruled  in  almost  ev- 
eiy  American  jurisdiction  where  the  question 
has  since  arisen,  may,  we  think,  fairly  be 
adopted  as  a  correct  statement  of  the  law, 
provided  proper  care  is  exercised  in  constm- 
ing  the  terms  used,  bearing  in  mind  that  the 
presumption  against  the  gi'antor  that  it  was 
not  bis  intention  "to  convey  land  in  such  man- 
ner that  the  grantee  could  derive  no  benefit 
from  the  conveyance"  must  be  fairly  weigh- 
ed and  applied  with  due  regard  to  the  counter 
presumption  that  it  could  not  have  been  his 
intention  "to  so  convey  a  portion  as  to  de- 
prive himself  of  the  enjoyment  of  the  remain- 
der." From  this  consideration— manifestly 
just  where  the  effort  is  to  extend  by  pm-e  im- 
plication the  language  used,  and  to  thus  sup- 
ply what  might  so  easily  have  been  procured 
to  be  expressed,  if  it  were  intended— it  will 
follow  that  the  word  "necessity"  and  the 
term  "reasonable  enjoyment"  can  have  no 
fixed  arbitrary  and  unyielding  meaning,  but 
must  find  their  explanation  in  view  of  the 
situation  of  the  parties,  of  the  nature,  char- 
acter, and  adaptability  of  the  property,  and 
in  the  light  of  surrounding  circumstances. 
They  should  also  receive  a  strict  construction, 
for  the  reason  that  such  implied  easement  is 
an  impairment  of  "the  exclusive  dominion  of 
every  man  over  his  own  soil  and  freehold, 
now  held  sacred  by  our  constitution  and 
laws."  Pierce  v.  Selleck.  18  Conn.  830.  It 
may  be  true,  as  stated  in  Bushnell  v.  Pro- 
prietors, and  the  true  ground  of  that  decision, 
that  "the  constniction  of  a  deed,  if  it  is  doubt- 
ful, must  be  taken  most  strongly  against  the 
grantor."  But  in  the  case  before  us  there  is 
no  question  concerning  the  construction  of 
language  used,  no  claim  that  this  is  doubtful, 
but  the  imputation  of  language  never  used; 
and  surely  caution  and  moderation  should  be 
exercised  in  that. 

It  further  must  follow,  we  think,  as  a  corol- 
lai-y  from  what  has  already  been  said,  that  the 
doctrine  of  easements  by  implied  grant— a 
doubtful  exercise  of  power  by  the  courts  in  all 
cases— should,  when  applied  to  easements  of 
light,  be  most  cautiously  used;  and,  briefly 
stated,  that  in  the  above  quotation  the  words 
"exclude  the  light"  should  not  be  regarded  as 
equivalent  to  "exclude  any  light";  in  other 
words,  that  "exclude"  is  not  to  be  held  synon- 
ymous with  "impair."  To  borrow  the  emphat- 
ic language  of  Dillon,  C.  J.,  in  Morrison  v. 
Marquardt,  24  Iowa,  G4:  "Surely,  such  an 
easement,  uncertain  in  its  extent  and  dura- 
tion, without  any  written  or  record  evidence 
of  its  existence,  fettering  estates  and  laying 
an  embargo  upon  the  hand  of  improvement 
M'hich  carries  the  trowel  and  the  plane,  and, 
as  applied  to  a  subsequent  purchaser,  against 


the  spirit  of  our  recording  acts,  and  not  de- 
manded by  any  consideration  of  public  policy, 
—surely,  such  an  easement  should  not  be  held 
to  exist  by  mere  implication,  when  such  impli- 
cation originates  in  no  reasonable  necessity." 
A  careful  examination  of  the  cases  in  the 
United  States  upon  the  subject,  both  those  cit- 
ed in  the  very  able  and  exhaustive  brief  in  be- 
half of  the  plaintiff  and  others,  justifies  the 
statement  that  in  what  we  have  said  we  have 
been  in  harmony  with  the  views  held  in  the 
principal  American  jurisdictions.  Wherever 
the  doctrine  of  easements  by  implied  grants  of 
light  and  air  has  been  recognized  at  all,  it  has 
been  carefully  restricted;  and  no  well-consid- 
ered case  in  this  country,  at  least  in  recent 
years,  can  be  found  that  has  gone  to  the  ex- 
tent, in  the  application  of  such  doctrine  to  the 
facts,  to  which  it  would  be  necessary  to  go  in 
the  present  case  in  order  to  justify  the  judg- 
ment of  the  court  below. 

In  Keats  v.  Hugo,  115  Mass.  204,  which  is 
a  well-considered,  and  may  be  regarded  as  a 
leading,  case,  three  actions  were  tried  togeth- 
er. In  the  principal  one  the  defendants  con- 
veyed to  the  plaintiff,  by  warranty  deed  in 
the  usual  form,  a  certain  lot  of  land  with  a 
dwelling  house  thereon,  situated  on  the  line 
between  the  parties,  created  by  said  convey- 
ence;  the  lot  so  conveyed  being  a  part  of  a 
larger  lot  then,  and  the  remainder  of  which 
was  at  the  date  of  the  action,  owned  by  the 
defendants.  The  dwelling  house  had  win- 
dows and  a  door  in  that  part  of  the  house  ad- 
joining the  line.  After  said  conveyance,  the 
defendants  placed  a  structure  and  woodshed 
on  their  own  land,  against  said  house,  within 
about  eight  inches  of  the  same.  The  question 
was  "whether  a  person  who  sells  a  house 
overlooking  land  retained  by  him  thereby  de- 
prives himself  of  the  right  to  build  on  that 
land  so  as  to  obstruct  the  passage  of  light  and 
air  to  the  windows."  The  court  (Gray,  C.  J.), 
In  the  opinion,  said:  "The  question  being  of 
great  practical  importance  to  owners  of  real 
estate,  and  having  heretofore  been  the  subject 
of  some  variety  and  conflict  of  judicial  opin- 
ion, we  have  thought  this  a  suitable  occasion 
to  review  the  cases  in  this  commonwealth, 
and  to  refer  to  the  principal  ones  in  other 
states."  The  court  then  proceeds  to  do  this 
in  an  exhaustive  manner,  and  concludes  by 
saying:  "By  nature,  light  and  air  do  not  flow 
in  definite  channels,  but  are  universally  dif- 
fused. The  supposed  necessity  of  their  pas- 
sage in  a  particular  line  or  direction  to  any  lot 
of  land  is  created  not  by  the  relative  situation 
of  that  lot  to  the  surrounding  lands,  but  by 
the  manner  in  which  that  lot  has  been  built 
upon.  The  actual  enjoyment  of  the  air  and 
light  by  the  owner  of  the  house  is  upon  his 
own  land  only.  He  makes  no  tangible  or  vis- 
ible use  of  the  adjoining  lands,  nor,  indeed, 
any  use  of  them  which  can  be  made  the  sub- 
ject of  an  action  by  their  owner,  or  which  in 
any  way  interferes  with  the  latter's  enjoy- 
ment of  the  light  and  air  upon  his  own  lands, 
or  with  any  use  of  those  lands  in  their  exist- 


BORDER  TREES. 


49 


ing  conflltlon.  In  short,  the  owner  of  adjoin- 
ing lands  has  submitted  to  nothing  which  actu- 
ally encroached  upon  his  rights,  and  cannot, 
therefore,  be  presumed  to  have  assented  to 
any  such  encroachment.  The  use  and  enjoy- 
ment of  the  adjoining  lands  are  certainly  no 
more  subordinate  to  those  of  the  house  where 
both  are  owned  by  one  man  than  where  the 
owners  are  different.  The  reasons  upon  which 
it  has  been  held  that  no  grant  of  a  right  to 
air  and  light  can  be  implied  from  any  length 
of  continuous  enjoyment  are  equally  strong 
against  implying  a  grant  of  such  a  right  from 
the  mere  conveyance  of  a  house  with  windows 
overlooking  the  land  of  the  grantor.  To  im- 
ply the  grant  of  such  a  right  in  either  case 
without  express  words  would  greatly  embar- 
rass the  improvement  of  estates,  and,  by  rea- 
son of  the  very  indefinite  character  of  the 
right  asserted,  promote  litigation.  The  sim- 
plest rule,  and  that  best  suited  to  a  country 
like  ours,  in  which  changes  are  continually 
taking  place  in  the  ownership  and  the  use  of 
lands,  is  that  no  right  of  this  character  can  be 
acquired  without  express  grant  of  an  interest 
in,  or  covenant  relating  to,  the  lands  over 
which  the  right  is  claimed.  In  accordance 
with  these  views,  the  English  doctrine  of  im- 
plied grants  of  rights  of  light  and  air  has 
been  wholly  rejected  in  several  well-consid- 
ered cases.  Palmer  v.  Wetmore,  2  Saudf. 
316;  Myers  v.  Gemmel,  10  Barb.  537;  Haver- 
stick  V.  Sipe,  83  Pa.  St.  368;  Mullen  v.  Striek- 
er, 19  Ohio  St.  135;  Morrison  v.  Marquardt, 
24  Iowa,  35.  And  with  the  single  exception 
of  Janes  v.  Jenkins,  34  Md.  1,  all  the  opinions 
of  American  judges  with  which  the  learning 
and  research  of  counsel  have  supplied  us,  in 
favor  of  the  acquirement  of  such  a  right  by 
mere  implication  from  the  conveyance  of  a 
house,  have  been  either,  as  in  Lampman  v. 
Milks,  21  N.  Y.  505,  512,  obiter  dicta,  or,  as 
in  Robeson  v.  Pittenger.  2  N.  J.  Eq.  57,  in 
those  states  in  which  a  like  right  is  held  to  ex- 
ist by  prescription,  and  therefore  of  no  weight 
as  authority  in  this  commonwealth.  Consid- 
ering, therefore,  that  by  the  preponderance  of 
reason  and  of  authority  no  grant  of  any  right 
of  light  or  air  over  adjoining  lands  is  to  be 
implied  from  the  conveyance  of  a  house,  we 
have  only  to  apply  this  rule  to  the  facts  of  the 
cases  pending  before  us."  Judgment  was  or- 
dered for  the  defendants. 

The  case  of  Keats  v.  Hugo  hi..^  been  quoted 
with  approval,  and  recognized  as  authority  in 
other  states.  Doyle  v.  Lord,  64  N.  Y.  432, 
was  a  case  where  the  facts  were  that  the 
plaintiffs  leased  the  first  floor  of  a  buildiu!; 
in  the  city  of  New  York  for  a  store.  In  the 
rear  was  a  yard  attached  to  and  exclusively 
appropriated  for  the  use  of  the  building,  to 
which  all  the  occupants  had  access  through  a 
hall  running  from  the  front  to  the  rear  of  the 
building,  and,  as  the  building  was  occupied 
when  the  plaintiff  leased,  no  tenant  could  dis- 
pense with  it.  The  rear  of  the  store  received 
light  necessary  for  the  transaction  of  business 
therein  from  windows  opening  into  the  yard. 
GATBS,R.P.— i 


In  holding  that  the  lessor  could,  upon  the 
facts  found,  be  restrained  from  building  in. 
the  j-ard  so  as  to  obstruct  the  light,  the  court 
(Harl,  J.)  said:  "This  conclusion  is  reached 
without  any  departure  from  what  may  be 
called  the  American  doctrine  as  to  light  and 
air,  as  distinguished  from  the  English  com- 
mon-law doctrine,  and  the  law  as  laid  down 
in  tlie  following  authorities  is  fully  recog- 
nized: Parker  v.  Foote,  19  Wend.  315;  Palm- 
er V.  Wetmore.  2  Sandf.  316;  Myers  v. 
Gemmel,  10  Barb.  537;  Mullen  v.  Strieker^ 
19  Ohio  St.  135;  *  *  ♦  Haverstick  v.  Sipe,. 
33  Pa.  St.  368;  Keats  v.  Hugo,  115  Mass.  204, 
*  *  *  Under  these  authorities,  if  the  lessor 
had  sold  the  store  and  lot  upon  which  it  stood, 
twenty-five  feet  by  fifty-one,  the  grantee 
would  have  taken  no  right  to  light  and  air 
from  the  balance  of  the  lot.  In  that  case  the 
grantor  could  have  built  upon  the  balance  of 
the  lot,  and  thus  have  darkened  the  windows- 
in  the  store  without  violating  any  rights  of 
the  grantee.  In  this  case,  if  the  yard  had  not 
been  part  of  the  lot  upon  which  the  building 
was  standing,  and  if  it  had  not  been  appropri- 
ated to  use  with  the  building  so  as  to  pass 
as  appurtenant  thereto  so  far  as  to  give  ease- 
ments therein  to  the  tenants  of  the  building, 
the  plaintiffs  could  not  have  complained  of 
the  acts  of  the  defendants  alleged  in  the  com^ 
plaint."  ^ 

In  Turner  v.  Thompson,  58  Ga.  268,  an  ex"- 
ecutrix  sold  a  half  lot  of  land,  with  a  tenement 
thereon,  opening  upon  the  other  half  lot;  and 
bought  the  other  half  herself  at  the  same  sale. 
It  was  held  that  she  "wiU  be  estopped  from 
obstructing  the  passage  of  light  and  air 
through  such  windows,  if  those  windows  were 
necessai-y  to  the  admission  of  sutficient  light 
and  air  for  the  reasonable  enjoyment  of  the 
tenement  which  she  sold;  aliter,  if  sutficient 
light  and  air  can  be  derived  from  other  win- 
dows opened,  or  which  could  conveniently  be' 
opened,  elsewhere  in  the  tenement,  to  make- 
the  rooms  reasonably  useful  and  enjoyable.'' 
The  court  (Jackson,  J.)  cites  with  approval 
Keats  V.  Hugo,  supra;  adding:  "The  prin- 
ciple applied  by  the  supreme  court  of  West. 
Virginia  in  a  recent  case  there  seems  to  us- 
sound  and  sensible,  and  we  shaU  adopt  it  to 
this  case.  *  *  *  That  principle  is  that  'art 
implied  grant  of  an  easement  of  light  will  be 
sustained  only  in  cases  of  real  necessity,  and 
will  be  denied  or  rejected  in  cases  when  it 
appears  that  the  owner  claiming  the  easement 
can,  at  a  reasonable  cost,  have  or  substitute 
other  lights  to  his  building.'  "  The  court  addsr 
"We  apply  this  principle  the  more  readily  be- 
cause it  appears  to  be  the  conclusion  of  Wash- 
burn (Easem.  p.  618),  drawn  from  a  consid- 
eration of  all  the  English  and  American  au- 
thorities, and  because,  as  before  stated.  It 
stx'lkes  us  as  reasonable  and  right.  *  ♦  •= 
So  Tyler  approved  the  same  principle  (Tyler,. 
Bound.  550),  and  Judge  Story  is  authority  to 
the  same  point  (U.  S.  v.  Appleton,  1  Sumn, 
492-502,  Fed.  Cas.  No.  14,463)."  In  this  case 
the  injunction  granted  was  dissolved,  because- 


50 


WHAT  IS  REAL  PROPi^RTY. 


the  "decree,  as  it  stands,  might  be  lield  to  en- 
join her  from  building,  if  these  lights  were 
at  all  impaired;  and  we  think  such  action 
ought  not  to  be  had  except  in  case  of  neces- 
sity as  before  explained." 

In  Renuyson's  Appeal,  94  Pa.  St.  147,  152, 
both  Keats  v.  Hugo  and  Turner  v.  Thompson 
are  cited  and  approved,  the  opinion  saying 
of  the  latter:  "It  is  worthy  of  remark,  how- 
ever, that  this  case  limits  the  general  applica- 
tion of  Keats  v.  Hugo  as  between  dominant 
and  servient  tenement  in  one  important  re- 
spect. I  think  the  limitation  is  wise  and  right. 
It  is  that  an  implied  easement  of  light  and 
air  will  be  sustained  in  case  of  real  necessity." 
The  opinion  then  proceeds  to  lay  down  the  fol- 
lowing rules:  "(1)  No  implication  of  a  gi'ant 
of  the  right  to  light  and  air  arises  upon  a 
sale  of  one  of  two  adjacent  lots  having  a  house 
upon  it,  with  windows  overlooking  the  land 
of  the  grantor.  (2)  The  grantor,  by  such  sale, 
is  not  estopped  from  .improving  his  retained 
lot  by  building  upon  it,  though  his  erection 
darkens  the  windows  of  his  vendee,  and  ex- 
cludes the  access  of  light  and  air  from  such 
windows.  (3)  That  the  limitation  of  these  two 
propositions  depends  upon  the  fact  as  to 
whether  such  windows  are  a  real  necessity 
for  the  enjoyment  of  the  grantee's  property. 
If  they  be,  then  the  implication  of  the  grant 
of  an  easement  of  light  and  air  wUl  be  sus- 
tained; if  they  be  not,  or  can  be  substituted  at 
a  reasonable  cost,  with  a  view  to  the  purposes 
of  the  dominant  tenement,  then  such  implica- 
tion will  be  denied  and  rejected.  (4)  The 
American  doctrine  as  to  light  and  air  requires 
an  express  grant  or  agreement,  unless  a  real 
and  actual  necessity  exists,  to  vest  a  dominant 
tenement  with  such  light.  (5)  The  doctrine 
of  ancient  lights  is  not  recognized." 

A  somewhat  earlier  case  than  those  just 
cited  is  that  of  Morrison  v.  Marquardt,  24 
Iowa,  35,  to  which  reference  has  already  been 
made,  and  in  which  a  very  elaborate  opinion 
was  written  by  Dillon,  C.  J.,  and  strong 
ground  is  taken  against  the  implication  of  an 
easement  of  light  and  air,  except  in  eases  of 
strictest  necessity.  See,  also,  Sutphetn  v.  Ther- 
kelson,  38  N.J.  Eq.  318;  White  v.  Bradley, 
06  Me.  254;  Braude  v.  Grace,  154  Mass.  210, 
212,  31  N.  E.  633,— where,  in  case  of  a  plain- 
tiff lessee,  held  entitled  to  a  remedy,  the  court 
said:  "We  do  not  regard  this  view  of  the 
rights  of  the  parties  as  at  all  inconsistent  with 
the  decision  in  Keats  v.  Hugo,  115  Mass.  204, 
and  other  cases,  which  hold  or  intimate  that 
the  necessity  must  be  pretty  plain  in  order 
to  waxTant  the  implication  of  a  grant."  See, 
also,  Case  v.  Minot,  158  Mass.  577.  33  N.  E. 
700,— a  case  similar  to  Doyle  v.  Lord,  supra, 
to  which  it  refers. 

Applying  these  principles  to  the  case  before 
us,  what  result  is  fairly  reached?  Here  was 
a  lot  located  on  Bradley  street,  about  six 
blocks  from  the  center  of  the  city  of  New 
Haven,  with  a  frontage  of  61  feet,  and  a 
depth  of  98  feet.  A  dwelling  house  stood 
upon  the  westerly  part  of  said  lot    The  plain- 


tiff purchased  said  westerly  part,  40  feet  front- 
age, with  saiddwellinghousethereon.  That  left 
the  grantor  a  lot  21  feet  front,  which  shortly 
afterwards  was  sold  to  the  defenaant.  If  we 
are  to  go  into  the  business  of  raising  pre- 
sumptions,— as  we  must,  to  support  implied 
grants,— it  is  fair  to  suppose  the  plaintiff  did 
not  pay  the  price  and  value  of  the  01-foot  lot, 
for  his  40-foot  lot.  But  it  would  have  beeji 
just  for  him  to  have  done  so,  provided  he  in- 
tended to  avail  himself  of  the  only  beneficial 
use  of  it, — keeping  it  open  and  unoccupied, 
in  order  to  have  no  obstruction  to  the  light 
of  his  sitting  and  dressing  room  derived  from 
his  bay  window.  It  is  also  fair  to  presume 
that  his  grantor  would  not  have  sold  a  por- 
tion for  a  less  price  than  the  whole,  provided 
the  remainder  was  thereby  to  become  prac- 
tically useless  to  him;  and,  if  he  had  charged 
the  price  of  the  whole  for  a  portion,  would 
not  the  plaintiff  have  insisted  upon  taking 
the  whole  instead  of  a  portion  only?  But  the 
grantor  would  not  have  sold  a  portion  only, 
unless  the  part  retained  was  beneficial  to 
him.  But  in  what  could  any  substantial  ben- 
efit from  such  a  lot  consist  unless  it  could 
be  built  upon?  And  if  building  was  contem- 
plated, there  could  be  little  question,  appar- 
ently, in  view  of  the  naiTOwness  of  the  lot, 
that  such  building  would  require  to  extend 
substantially  to  both  sides  of  the  ground. 
The  fact  that  the  plaintiff  purchased  laud 
extending  5  feet  beyond  the  east  'face  of  his 
bay  windows,  and  from  10  to  II  beyond  that 
of  his  house,  is  significant.  Such  additional 
width  of  5  feet  would  evidently  have  beeu 
useful  to  a  21-foot  lot.  But  the  plaintiff  pur- 
chased it,  thereby  giving  himself  in  fact, 
whatever  his  purpose  may  have  been,  a  strip 
of  that  width,  upon  which  no  structure  could 
be  constructed  without  his  act,  to  either  ex- 
clude or  impair  his  light.  When  the  defend- 
ant, who  lived  near,  and  was  fully  acquaint- 
ed with  the  property,  bought,  what  was  the 
evident  situation?  He  found  a  naiTow,  va- 
cant lot,  adapted  to  the  puri^oses  of  building; 
presumably  to  no  other  use.  The  plaintiffs 
house,  itself  upon  a  lot  so  nan-ow  that  it  ex- 
tended nearer  to  the  opposite  side  of  the  lot 
than  to  the  side  in  question,  on  which  there 
were  five  feet  clear  beyond  the  uttermost  ex- 
tension in  a  bay  window,  which  projected 
five  or  six  feet  from  the  side  of  the  house. 
Could  any  one  purchasing  property  under 
such  circumstances  have  supposed  that  it 
was  the  intention  of  the  parties,  in  making 
and  accepting  the  grant  of  the  portion  of 
the  original  premises  which  had  been  con- 
veyed to  the  plaintiff,  that  there  should  go 
with  such  premises,  by  implication— by  im- 
plied grant— a  right  in  the  remaining  portion 
of  such  premises,  paramount  to  and  prevent- 
ative of  their  beneficial  use  and  enjoyment? 
We  think  not.  Should  the  defendant,  then, 
have  been  enjoined  from  the  acts  proposed? 
His  intention  was  to  build  a  dwelling  house 
to  extend  down  along  the  boundary  line,  for 
a  distance  of  58  feet  from  a  point  about  6 


BORDER  TREES. 


51 


feet  from  Bradley  street,  the  wall  of  which 
was  to  be  about  20  feet  high.  It  is  found  by 
the  court  that  "the  erection  of  said  dwelling 
house  would  deprive  the  plaintiff  of  the  sup- 
ply of  light  which  has  come  across  said  21 
feet,  now  owned  by  the  defendant,  and 
M'ould  make  it  necessary  for  the  defeudixnt 
to  light  his  sitting  room  and  dressing  room 
with  gas  or  some  other  light  in  the  daytime, 
in  order  to  obtain  sufficient  light  for  the  rea- 
sonable use  of  the  rooms."  This  is  a  finding 
of  fact  which  we  are  not  at  liberty  to  re- 
view. But  we  have  the  right,  and  it  is  our 
clear  duty,  to  interpret  the  language,  so  far 
as  the  same,  by  reason  of  indefiuiteuess,  re- 
quires interpretation,  by  the  aid  of  those 
facts  which  pertain  to  that  common  and  gen- 
eral fund  of  knowledge  and  information 
which  belongs  to  the  domain  of  things  of 
which  all  courts  are  bound  to  take  judicial 
notice.  By  this  assistance  it  becomes  evi- 
dent that  the  depreciation  of  light  which 
would  ensue  from  the  intended  act  of  the  de- 
fendant is  far  from  total.  The  plaintiff 
would  not  only  be  left  with  so  much  light 
as  would  come  from  the  unobstructf^d  space 
between  the  buildings,  including  the  addi- 
tional space  covered  by  the  northeastern  and 
southeastern  sides  of  his  bay  window,  to 
which  he  could  add  by  putting  in  windows 
elsewhere,  or  differently  constructed;  he 
would  also  have  the  light  from  overhead,  be- 
yond the  top  of  a  wall  20  feet  high;  and  as 
to  his  dressing  room  on  the  second  story  of 
his  house,  which  does  not  extend  so  far  east- 
ward into  several  feet  as  the  sitting  room 
bay  window  projection,  the  angle  in  which 
the  light  would  be  admitted  would  seem  to 
be  such  as  to  make  the  obstniction  compara- 
tively small.  It  seems  to  us,  therefore,  that 
the  proposed  act  of  the  defendant  would  be, 
in  view  of  all  the  circumstances,  an  inter- 
ruption of  light  to  the  plaintiff  to  the  extent 
•of  that  which  is  convenient  only,  not  to  that 


■which  is  necessary  for  the  reasonable  enjoy- 
ment of  his  dwelling.  Indeed,  that  enjoy- 
ment is  not  reasonable  which  deprives  the 
defendant  of  any  use  of  his  property,  in  order 
merely  that  the  plaintifiC  may,  by  reason  of 
such  deprivation,  have  a  more  comfortable, 
convenient,  and  better  use  of  his  own.  In 
view  of  the  facts  found,  as  we  interpret  the 
finding,  we  conclude  that  an  injunction  could 
not  have  been  granted  had  not  the  trial  court 
adopted  what  we  hold  to  be  the  wrong 
standard,  substituting  convenience  for  ne- 
cessity as  the  test  by  which  to  determine 
the  existence  of  the  right  claimed.  In  this 
respect  also  the  court  erred. 

The  court  also  erred  in  granting  an  injunc- 
tion in  so  indefinite  terms.  It  is  impossible 
to  lay  down  any  precise  rule  of  universal  ap- 
plication upon  the  subject.  But  the  person 
enjoined  is  entitled  to  know  with  reasonable 
certainty  what  acts  he  may  and  may  not  do 
without  making  himself  liable  as  in  contempt 
of  an  order.  In  reference  to  light,  it  was  the 
claim  of  the  defendant  throughout— a  claim 
which  we  are  not  at  liberty  to  say  was  not 
made  in  good  faith— that  the  erection  in- 
tended to  be  made  by  him  would  not  be  of 
such  a  character  or  "so  near  as  to  exclude 
the  light  from  the  plaintiff's  dwelling  house." 
This  claim  the  court  overruled.  But  there  is 
nothing  in  the  injunction  to  indicate  whether 
any  erection,  or,  if  so,  how  near,  or  of  what 
a  character,  would  be  permissible.  Without 
endeavoring  to  state  what  degree  of  certain- 
ty would  have  been  reasonably  practicable 
under  the  circumstances,  which  is  unneces- 
sary in  view  of  what  we  have  held  upon  the 
other  questions  in  the  case,  it  is  sufficient  to 
say  that  it  seems  to  us  the  language  em- 
ployed falls  short  of  the  degree  of  definite- 
ness  which  could  without  inconvenience  be 
attained,  and  should  be  required.  There  is 
error,  and  a  new  trial  is  granted.  The  other 
judges  concurred. 


52 


WHAT  IS  REAL  PROPERTY. 


BRACKETT  v.  GODDARD. 
(54  Me.  309.) 
Supreme  Judicial  Court  of  Maine.     1867. 
D.   D.  Stewart,  for  plaintiff.     A.   W.  Paine, 
for  defendant. 

APPLETON,  C.  J.  This  is  an  action 
brought  to  recover  the  price  of  certain  logs  sold 
by  the  defendant  to  the  plaintiff.  The  claim 
is  based  upon  an  alleged  failure  of  the  defend- 
ant's title. 

The  defendant,  while  owning  a  lot  of  land  in 
Hermon,  cut  down  a  quantity  of  hemlock  trees 
thereon.  After  peeling  the  bark  therefrom  and 
hauling  it  off  the  land,  he  conveyed  the  lot  to 
one  Works,  by  deed  of  warranty,  without  any 
reservation  whatever.  At  the  date  of  this 
deed,  the  hemlock  trees  in  controversy  were  ly- 
ing on  the  lot  where  they  had  been  cut,  with 
the  tops  remaining  thereon. 

The  defendant,  after  "his  deed  of  the  land  to 
Works,  conveyed  the  hemlocks  cut  by  him  to 
the  plaintiff.  Works,  the  grantee  of  the  de- 
fendant, claimed  the  same  by  virtue  of  his 
deed.  The  question  presented  is  whether  the 
title  to  the  logs  is  in  the  plaintiff  or  in  Works. 

Manure  made  upon  a  farm  is  personal  prop- 
erty and  may  be  seized  and  sold  on  execution. 
Staples  V.  Emery,  7  Greenl.  301.  So,  wheat 
or  corn  is  a  growing  chattel  and  may  be  sold 
on  execution.  Whipple  v.  Tool,  2  Johns.  419. 
Yet  it  is  held  that  growing  crops  and  manure, 
lying  upon  the  land,  pass  to  the  vendee  of 
the  land,  if  not  excepted  in  the  deed  (2  Kent, 
Comm.  346),  or  by  statute,  as  in  this  state  by 
Rev.  St.  c.  81,  §  6,  cl.  6.  Fencing  materials 
on  a  farm,  which  have  been  used  as  a  part  of 
the  fences,  but  are  temporarily  detached,  with- 
out any  intent  of  diverting  them  from  their 
use,  as  such,  are  a  part  of  the  freehold,  an^ 
pass  by  a  conveyance  of  the  farm  to  a  pur- 


chaser. Goodrich  t.  Jones,  2  Hill,  142.  Hop 
poles,  used  necessarily  in  cultivating  hops,  which 
were  taken  down  for  the  purpose  of  gathering 
the  crop  and  piled  in  the  yard,  with  the  inten- 
tion of  being  replaced  in  the  season  of  hop  rais- 
ing, are  part  of  the  real  estate.  Bishop  v. 
Bishop,  11  N.  Y.  123. 

Timber  trees,  if  blown  down,  or  severed  by 
a  stranger,  pass  by  a  deed  of  the  land.  "We 
think  that  it  cannot  admit  of  a  doubt,"  re- 
marks Richardson,  C.  J.,  in  Kittredge  v.  Wood, 
3  N.  H.  503,  "that  trees  felled  and  left  upon 
the  land,  fruit  upon  trees,  or  fallen  and  left 
under  the  trees  where  it  grew,  and  stones  lying 
upon  the  earth,  go  with  the  land,  if  there  be  no 
reservation." 

The  hemlock  trees  were  lying  upon  the 
ground.  The  tops  and  branches  were  remain- 
ing upon  them.  They  were  not  excepted  from 
the  defendant's  deed,  and,  being  in  an  un- 
manufactured state,  they  must,  from  analogy 
to  the  instances  already  cited,  pass  with  the 
land.  Such,  too,  is  the  statute  of  1867  (chap- 
ter 88),  defining  the  ownership  of  down  timber. 
It  would  have  been  otherwise,  had  they  been 
cut  into  logs  or  hewed  into  timber.  Cook  v. 
Whitney,  16  111.  481. 

The  defendant,  at  the  plaintiff's  request,  trav- 
elled from  another  state,  as  a  witness,  to  tes- 
tify for  him  in  his  suit  against  Works.  He 
claims  to  have  his  fees  allowed  in  set-off  in  this 
suit.  His  account  in  set-off  was  regularly  filed. 
He  is  entitled  to  compensation  therefor,  which, 
as  claimed,  will  be  travel  from  his  then  place 
of  residence,  and  attendance,  in  accordance 
with  the  fees  established  by  statute. 

Offset  allowed.  Defendant  defaulted,  to  be 
heard  in  damages. 

CUTTING,  KENT,  WALTON,  DICKER- 
SON,  and  BARROWS,  JJ.,  concurred.  TAP- 
LEY,  J.,  dissented. 


i 


EMBLEMENTS. 


53 


GRAVES  V.  WELD. 
(5  Barn.  &  Adol.  105.) 
Court  of  King's  Bench.     1833. 
Mr.  Follett,  for  plaintiff.     Mr.  Gambler,  for 
defendant. 

DBNMAN,  C.  J.  In  this  case  the  plaintiff 
is  undoubtedly  entitled  to  emblements.  The 
question  is,  whether  that  which  is  here  called 
the  second  crop  of  clover  falls  under  that  de- 
scription?    We  think  it  does  not. 

In  the  very  able  argument  before  us,  both 
sides  agreed  as  to  the  principle  upon  which  the 
law  which  gives  emblements  was  originally 
established.  That  principle  was,  that  the  ten- 
ant should  be  encouraged  to  cultivate,  by  be- 
ing sure  of  receiving  tlie  fruits  of  his  labor; 
but  both  sides  were  also  agreed  that  the  rule 
did  not  extend  to  give  the  tenant  all  the  fruits 
of  his  labor,  or  the  right  might  be  extended 
in  tha.t  case  to  things  of  a  more  permanent  na- 
ture, as  trees,  or  to  more  crops  than  one',  for 
the  cultivator  very  often  looks  for  a  compen- 
sation for  his  capital  and  labor  in  the  produce 
of  successive  years.  It  was,  therefore,  ad- 
mitted by  each,  that  the  tenant  could  be  en- 
titled to  that  species  of  product  only  which 
grows  by  the  industry  and  manurance  of  man, 
and  to  one  crop  only  of  that  product.  But  the 
plaintiff  insisted  that  the  tenant  was  entitled 
to  the  crop  of  any  vegetable  of  that  nature, 
whether  produced  annually  or  not,  which  was 
growing  at  the  time  of  the  cesser  of  the  ten- 
ant's interest.  The  defendant  contended  that 
he  was  entitled  to  a  crop  of  that  species  only 
which  ordinarily  repays  the  labor  by  which  it 
is  produced,  within  the  year  in  which  that  la- 
bor is  bestowed,  though  the  crop  may,  in  ex- 
traordinary seasons,  be  delayed  beyond  that 
period.  And  the  latter  proposition  we  consider 
to  be  the  law. 

It  is  not,  however,  absolutely  necessary  to 
decide  this  question;  for,  assuming  that  the 
plaintiff's  rule  is  the  correct  one,  the  crop 
which  is  claimed  was  not  the  crop  growing  at 
the  end  of  the  term.  The  last  cestui  que  vie 
died  in  July.  The  barley  and  the  clover  were 
then  growing  together  on  the  same  land,  and 
a  crop  of  both,  together,  was  taken  by  the 
plaintiff  in  the  autumn  of  that  year;  though 
the  crop  of  clover  of  itself  was  of  little  value. 
Thus  the  plaintiff  has  had  one  crop.  And  if 
it  were  necessary,  either  generally,  or  in  the 
particular  case,  that  the  crop  taken  should  re- 
munerate the  tenant,  we  must  observe,  that 
though  the  crop  of  clover  alone  did  not  repay 
the  expense  of  sowing  and  preparation,  the 
case  does  not  find  that  both  crops  together  did 
not  repay  the  expenses  incurred  in  raising 
both.  The  decision,  therefore,  might  proceed 
on  this  short  ground;  but  as  the  more  gen- 
eral and  important  question  has  been  most 
fully  and  elaborately  argued,  we  think  it  right 
to  say  we  are  satisfied  that  the  general  rule  laid 
down  by  the  defendant's  counsel  is  the  right 
one. 
The  principal  authorities  upon  which  the  law 


of  emblements  depends  are  Littleton  (section 
GS),  and  Coke's  commentary  on  that  passage. 
The  former  is  as  follows:  "If  the  lessee  sow- 
eth  the  land,  and  the  lessor,  after  it  is  sowne, 
and  before  the  corne  is  ripe,  put  him  out.  yet 
the  lessee  shall  have  the  corne,  and  shall  have 
free  entry,  egresse  and  regresse  to  cut  and  Car- 
rie away  the  corne,  because  he  knew  not  at 
what  time  the  lessor  would  enter  upon  him." 
Lord  Coke  (Co.  Lift.  55a),  says:  "The  reason 
of  this  is,  for  that  the  estate  of  the  lessee  is 
uncertaine,  and,  therefore,  lest  the  ground 
should  be  unmanured,  which  should  be  hurt- 
ful to  the  commonwealth,  he  shall  reap  the 
crop  which  he  sowed  in  peace,  albeit  the  lessor 
doth  determine  liis  will  before  it  be  ripe.  And 
so  it  is  if  he  set  rootes  or  sow  hempe,  or  flax, 
or  any  other  annuall  profit,  if  after  the  same 
be  planted,  the  lessor  oust  the  lessee;  or  if 
the  lessee  dieth,  yet  he  or  his  executors  shall 
have  that  yeare's  crop.  But  if  he  plant 
young  fruit  trees,  or  young  oaks,  ashes,  elmes, 
&c.,  or  sow  the  ground  with  acornes,  &c.,  there 
the  lessor  may  put  him  out  notwithstanding, 
because  they  will  yield  no  present  annuall  prof- 
it." These  authorities  are  strongly  in  favour 
of  the  rule  contended  for  by  the  defendant's 
counsel.  They  confine  the  right  to  things  yield- 
ing present  annual  profit,  and  to  that  year's 
crop  which  is  growing  when  the  interest  deter- 
mines. The  case  of  hops,  which  grow  from 
ancient  roots,  and  which  yet  may  be  emble- 
ments, though  at  first  sight  an  exception,  real- 
ly falls  within  the  rule.  In  Latham  v.  At- 
wood,  Oro.  Oar.  515,  they  were  held  to  be 
"like  emblements,"  because  they  were  "such 
things  as  grow  by  the  manurance  and  industry 
of  the  owner,  by  the  making  of  hills  and  set- 
ting poles."  That  labour  and  expense,  witli- 
out  which  they  would  not  grow  at  all,  seems 
to  have  been  deemed  equivalent  to  the  sowing 
and  planting  of  other  vegetables.  Mr.  Cruise, 
in  his  Digest  (volume  1  [3d  Ed.]  110),  says 
that  this  determination  was  probably  on  ac- 
count of  the  great  expense  of  cultivating  the 
ancient  roots.  It  may  be  observed,  that  the 
case  decides  that  hops,  so  far  as  relates  to 
their  annual  product  only,  are  emblements;  it 
by  no  means  proves,  that  the  person  who  plant- 
ed the  young  hops  would  have  been  entitled  to 
the  first  crop  whenever  produced. 

On  the  other  hand,  no  authority  was  cited 
to  show  that  things  which  take  more  than  a 
year  to  arrive  at  maturity,  are  capable  of  be- 
ing emblements,  except  the  case  of  Kingsbury 
V.  Collins,  4  Bing,  202,  in  which  teazles  were 
held  by  the  court  of  common  pleas  to  be  so. 
But  this  point  was  not  argued,  and  the  court 
does  not  appear  to  have  been  made  acquainted 
with  the  nature  of  that  crop  or  its  mode  of 
cultivation,  or  it  may  be,  that  in  the  year  when 
the  plant  is  fit  to  gather,  so  much  labour  and 
expense  is  incurred,  as  to  put  it  on  the  same 
footing  as  hops.  We  do  not  therefore  con- 
sider this  case  as  an  authority  upon  the  point 
in  question. 

The  note  of  Serjeant  Hill  in  9  Vin.  Abr. 
368,  in  Lincoln's  Inn  Library,  which  Mr.  Gam- 


54 


WHAT  IS  REAL  PROPERTY. 


bier  quoted,  is  precisely  in  point  in  the  present 
case,  and  proves  that,  in  the  opinion  of  that 
eminent  lawyer,  the  crop  of  clover  in  question 
does  not  belong  to  the  plaintiffs.  It  is  stron- 
ger, because  there  the  estate  of  the  tenant  is 
supposed  to  determine  after  harvest,  whereas 
here  it  determined  before. 

The  weight  of  authority,  therefore,  is  in  fa- 
vour of  the  rule  insisted  upon  by  the  defend- 
ant. There  are  besides  some  inconveniences, 
doubts,  and  disputes,  which  were  pointed  out 
in  the  argument,  which  would  arise  if  the  oth- 
er rule  were  to  prevail.  Is  the  tenant  to  have 
the  feeding  in  autumn,  besides  the  crop  in  the 
following  year?  If  so,  he  gets  something 
more  than  one  crop.  Is  he  to  have  the  pos- 
session  of  the  land   for  the  purpose?     Or  is 


the  reversioner  to  have  the  feeding;  and,  in 
that  case,  is  the  reversioner  to  be  liable  to  an 
action  if  he  omits  to  feed  off  the  clover,  and 
thereby  spoils  the  succeeding  crop?  These  in- 
conveniences do  not  arise  if  the  defendant's 
rule  is  adopted.  It  also  prevents  the  rever- 
sioner from  being  kept  out  of  tbe  full  enjoy- 
ment of  his  land  for  a  longer  time  than  a  year 
at  the  most;  whereas,  upon  the  other  suppo- 
sition, that  period  may  be  extended  to  two  or 
more  years,  according  to  the  nature  of  the 
crop. 

We  are  therefore  of  opinion  that  the  rule 
regulating  emblements  is  that  which  the  de- 
fendant has  contended  for,  and  that  for  this 
reason  also  he  is  entitled  to  our  judgmemt. 
Judgment  for  the  defendant. 


EMBLEMENTS. 


BRADLEY  v.  BAILEY  et  al. 

(15  Atl.  746,  56  Conn.  374.) 

Supreme  Oourt  of  Errors  of  Connecticut.     Jan. 
13,  1888. 

Appeal  from  court  of  common  pleas,  New 
Haven  county;    Deming,  Judge. 

Trespass  by  James  H.  Bradley  against  George 
R.  and  Abraham  L.  Bailey  for  entering  upon 
land  occupied  by  plaintiff,  and  destroying  a 
crop  of  rye  growing  thereon.  Plaintiff  recov- 
ered judgment  in  the  court  of  common  pleas, 
and  defendants  appealed. 

L.  Harrison  and  E.  Zacher,  for  appellants. 
E.  P.  Arvine  and  G.  A.  Tyler,  for  appellee. 


BEARDSLEY,  J.  This  is  a  complaint  in 
trespass,  in  which  the  defendants  appeal  from 
an  adverse  judgment  in  the  court  of  common 
pleas.  The  material  allegations  of  the  com- 
plaint are  that  one  John  R.  Bradley  was  ten- 
ant for  life  of  a  certain  tract  of  land,  of  which 
the  defendant  George  R.  Bailey  was  tenant 
for  life  in  remainder;  that  John  B.  Bailey,  in 
the  month  of  April,  1885,  leased  the  tract  to 
the  plaintiff  for  the  term  of  three  years;  that 
the  plaintiff  sowed  a  portion  of  the  tract  with 
winter  rye  on  the  18th  of  September,  1885; 
and  that  John  B.  Bailey  died  on  the  20th  of 
September,  1885,  and  that  George  R.  Bailey, 
and  the  other  defendant,  by  his  direction,  in 
the  month  of  June  following,  plowed  in  and 
destroyed  the  crop  of  rye  then  maturing.  The 
truth  of  these  allegations  of  the  complaint  was 
admitted  upon  the  trial,  except  that  the  de- 
fendant claimed  that  the  rye  was  sown  on  the 
19th  instead  of  the  18th  day  of  September, 
1885;  which,  however,  is  immaterial.  The  only 
question  which  we  are  called  upon  to  consider 
arose  under  the  issue  formed  by  the  plain- 
tiff's traverse  of  the  second  answer  to  the  com- 
plaint, the  material  part  of  which  is  as  fol- 
lows: The  defendants  say  that  if  the  plain- 
tiff did  anything  upon  said  premises  on  Septem- 
ber 18th  or  19th,  1885,  he  did  the  same  with 
full  knowledge  that  said  John  B.  Bailey  was 
then  dying;  that  if  he  did  anything  it  was 
nothing  more  than  to  harrow  the  soil  in  a  hasty 
and  superficial  manner  immediately  after  he 
had  dug  his  crop  of  potatoes  from  the  same, 
and  to  scatter  a  few  seeds  upon  the  same,  with- 
out having  first  plowed  and  manured  the  same, 
as  is  customary  and  proper  with  the  farmers  in 
this  state,  and  at  an  untimely  season  of  the 
year,  and  without  laying  the  same  down  to 
grass,  as  is  customary  and  proper, — all  of  said 
acts  of  the  plaintiff  being  for  the  purpose  of 
defrauding  said  George  R.  Bailey  in  his  use  of 
and  right  to  said  land  after  the  death  of  said 
John  B.  Bailey."  Upon  the  trial  of  this  case 
to  the  jury  the  plaintiff,  in  reply  to  inquiries 
made  by  the  defendants  upon  cross-examina- 
tion, described  the  manner  in  which  he  pre- 
pared the  ground  for  the  crop.  The  defend- 
ant afterwards  asked  his  own  witness  this 
question:    "What  is  the  customary  way  of  sow- 


ing rye,  and  preparing  the  ground  for  it?"  The 
court  excluded  this  question,  upon  the  objec- 
tion of  the  plaintiff  that  there  was  no  estab- 
lished custom,  and  that  it  was  immaterial.  The 
defendants  claimed  the  testimony  to  show  that 
the  land  was  not  prepared  in  the  customary 
way  as  a  part  of  the  alleged  defense.  This 
ruling  of  the  court  is  assigned  for  error.  In 
support  of  the  allegation  in  the  answer  that 
the  plaintiff  knew  that  Bradley,  the  tenant  for 
life,  was  dying  when  he  sowed  the  crop,  the 
defendants  called  Dr.  Webb,  the  physician  who 
attended  him  during  the  month  of  September, 
1885,  and  who,  after  describing  his  symptoms, 
testified  that  for  the  last  week  or  more  of  his 
life  he  was  gradually  failing  every  day,  grow- 
ing weaker  and  nearer  to  his  end  every  day, 
and  that  this  was  apparent  to  every  one  who 
had  common  sense.  It  was  admitted  that  at 
the  time  of  his  death,  and  for  several  months 
before,  he  resided  with  the  plaintiff.  The  de- 
fendants then  offered  several  witnesses  to  tes- 
tify,— one,  that  Bradley  appeared  to  be  dying 
on  the  16th  and  17th  of  September,  when  the 
plaintiff  was  present;  another,  that  the  plain- 
tiff's attention  was  called  by  him  to  Bradley's 
condition  on  the  18th  of  September,  1885;  an- 
other, that  the  plaintiff  had  said  on  the  18th 
and  19th  of  September  that  Bradley  could  not 
live  through  the  night;  and  another,  that  the 
plaintiff  had  said,  a  few  days  before  Bradley's 
death,  that  he  was  very  low.  xVll  of  this  evi- 
dence, except  the  testimony  of  Dr.  Webb,  was 
objected  to  by  the  plaintiff,  and  excluded.  The 
plaintiff,  against  the  objection  of  the  defend- 
ants, was  permitted  to  testify,  in  contradiction 
of  Dr.  Webb,  that  the  doctor  had  told  him, 
as  late  as  the  last  week  of  Bailey's  life,  that 
"he  might  live  for  quite  a  long  time;  that  he 
might  get  out  of  it,  and  live  for  a  year  or  two. 
and  perhaps  longer,  and  might  not  live  so  long 
as  that."  The  court  charged  the  jury  on  this 
point  as  follows:  "The  question,  then,  is,  did 
the  plaintiff  know  for  a  certainty  that  his  less- 
or, the  tenant  for  life  of  the  estate,  would  die 
before  he  could  mature  that  crop?  If  we  find 
that  there  was  any  uncertainty  in  regard  to 
the  duration  of  the  life  of  Mr.  Bailey,  you  must 
find  for  the  plaintiff.  If  you  find  that  the  time 
of  his  death  was  so  certain  that  he  (Bradley) 
had  no  doubt  in  regard  to  it,  then  your  verdict 
should  be  for  the  defendants." 

The  several  rulings  of  the  court,  and  the 
charge  to  the  jury  referred  to,  are  assigned  for 
error.  We  do  not  think  that  either  of  them 
afford  the  defendants  any  ground  of  exception. 
On  the  contrary,  we  think  that  the  charge  was 
too  favorable  to  the  claim  of  the  defendants. 
It  was  adapted  to  the  issue  between  the  par- 
ties, and  would  perhaps  have  been  unobjection- 
able if  that  issue  had  been  a  material  one; 
but  the  isssue  was  an  immaterial  one,  and  the 
plaintiff  would  have  been  entitled  to  judgment 
upon  the  conceded  facts  if  it  had  been  found 
in  favor  of  the  defendants.  If  it  were  possible 
for  the  plaintiff  to  have  had  absolute  knowledge 
beforehand  of  the  time  of  Mr.  Bailey's  death, 
and  he  had  known  that  it  would  occur  before 


56 


WHAT  IS  REAL  PROPERTY. 


the  maturity  of  the  crop  which  he  was  plant- 
ing, his  right  to  it  would  not  be  thereby  de- 
feated. In  Co.  Litt.  55b,  note  1,  the  law  is 
thus  stated:  "So,  therefore,  if  tenant  for  life 
soweth  the  ground  and  dieth,  his  executors 
shall  have  the  corn,  for  that  his  estate  was  un- 
certain, and  determined  by  the  act  of  God;  and 
the  same  law  is  of  the  lessee  for  years  of  the 
tenant  for  life."  Blackstone  says,  (2  Comm. 
122:)  "Therefore  if  a  tenant  for  his  own  life 
sows  the  land,  and  dies  before  harvest,  his  ex- 
ecutors shall  have  the  emblements  or  profits  of 
the  crop;  for  the  estate  was  determined  by  the 
act  of  God,  and  it  is  a  maxim  of  the  law  that 
actus  Dei  nemini  facit  injuriam."  We  are  re- 
ferred to  no  case  in  which  the  exception  claimed 
by  the  defendants  has  been  made  to  this  rule 
during  the  centuries  of  its  existence.  To  hold 
that  this  right  may  be  defeated  after  the  ten- 
ant's death,  by  evidence  of  his  condition  of 
health,  or  by  his  declarations  or  those  of  his 
lessee  imputing  a  belief,,  however  well  founded, 
or  knowledge,  if  such  knowledge  be  possible, 
that  his  Ufe  would  not  continue  until  harvest 
time,  would  in  many  cases  subvert  an  important 
object  of  the  rule,— the  encouragement  of  hus- 
bandry,— and  open  a  fruitful  source  of  unseem- 
ly litigation.  A  tenant  in  failing  health,  espe- 
cially if  he  had  expressed  a  belief  that  his  end 
was   near,   would  naturally  hesitate  to  put   in 


crops  which  might  be  successfully  claimed  by 
his  successor  in  title,  or  in  respect  to  which 
his  estate  might  become  involved  in  litigation. 
The  question  asked  by  the  defendants  of  a  wit- 
ness as  to  the  customary  mode  of  sowing  rye, 
and  preparing  the  ground  for  it,  was  properly 
excluded.  We  have  shown  that  the  plaintiff 
had  a  right  to  sow  the  rye  for  his  own  use, 
and  it  was  a  matter  of  no  consequence  to  the 
remainder-man  how  he  did  it.  Nor  did  his  right 
to  the  crop  depend  upon  his  cultivating  the  land 
according  to  the  rules  of  good  husbandry.  If 
it  was  done  in  an  unhusband  like  manner,  and 
in  such  a  way  that  the  crop  would  be  an  in- 
considerable one,  it  would  be  wholly  his  own 
loss.  The  fact  of  his  hurried  and  imperfect 
mode  of  sowing  the  land  may  have  been  of 
pertinence  to  the  question  whether  he  was  in 
reality  sowing  rye,  or  only  pretending  to  do  so. 
But  it  was  not  offered  for  this  purpose,  but 
to  show  that  he  was  acting  in  the  belief  that 
the  tenant  for  life  would  die  in  a  few  days. 
But,  as  we  have  already  shown,  this  belief  was 
of  no  importance.  His  right  did  not  depend 
upon  the  condition  of  the  tenant  for  life.  And 
he  would  have  no  interest  in  putting  any  labor 
on  the  land  as  a  matter  of  mere  pretence,  as 
he  would  only  lose  his  labor  by  so  doing.  There 
is  no  error  in  the  judgment  appealed  from. 
The  other  judges  concurred. 


FIXTURES. 


57 


WALKER  V.  SHERMAN. 

(20  Wend.  636.) 

Supreme  Court  of  New  York.    Oct.,  1839. 

L.  Walker  and  B.  D.  Noxon,  for  plaintiff. 
C.  P.  Kirkland,  for  defendant. 

COWEN,  J.  Judging  from  the  affidavits  be- 
fore us,  the  machinery  which  the  commission- 
ers excluded  as  being  personal  property,  was 
such  only  as  was  movable,  and  in  no  way  physic- 
ally attached  to  the  factory  or  land,  though 
it  had  been  used  for  several  years,  as  belong- 
ing to  the  factory,  and  was  as  material  to  its 
performance  in  certain  departments  of  its  work, 
as  the  machinery  which  was  actually  affixed. 
Did  the  commissioners  err  in  disregarding  the 
movable  machines?  That  is  the  only  question. 
If  they  were  right,  the  equality  and  justice  of 
the  partition  are  apparent  upon  the  proofs;  if 
wrong,  the  report  should  be  set  aside,  and  the 
commissioners  be  required  to  review  their  de- 
cision. 

The  question  is  one  between  tenants  in  com- 
mon, the  owners  of  the  fee;  and  is,  we  think, 
to  be  decided  on  the  same  principle  as  if  it  had 
arisen  between  grantor  and  grantee,  or  as  if 
partition  had  been  effected  by  the  parties 
through  mutual  deeds  of  bargain  and  sale.  As 
between  such  parties,  the  doctrine  of  fixtures 
making  a  part  of  the  freehold,  and  passing  with 
it,  is  more  extensively  applied  than  between  any 
others.  As  between  tenant  for  life  or  years  and 
reversioner  or  remainder  man,  all  erections  by 
the  former  for  the  purposes  of  trade  or  manu- 
factures, though  fixed  to  the  freehold,  are  con- 
sidered as  his  personal  property,  and  as  such, 
may  be  removed  by  him  during  his  term,  or  be 
made  available  to  his  creditors  on  a  fieri  facias. 
On  his  death,  they  go  to  his  executors  or  ad- 
ministrators; yet  by  a  conveyance,  they  pass 
to  the  vendee.  Fructus  industriales,  it  is  well 
known,  always  go,  on  the  owner's  death,  to  the 
executor  or  administrator,  not  to  the  heir; 
whereas,  they  are  carried  by  a  devise  or  other 
conveyance  of  the  land,  to  the  devisee  or  ven- 
dee. Spencer's  Case,  Winch,  51;  Austin  v. 
Sawyer,  9  Cow.  39;  Wilkins  v.  Vashbinder,  7 
Watts,  378,  and  the  cases  there  cited  overrul- 
ing Smith  V.  Johnston,  1  Pen.  &  W.  471,  con- 
tra. The  general  rule  is,  that  anything  of  a 
personal  nature,  not  fixed  to  the  freehold,  can- 
not be  considered  as  an  incident  to  the  land, 
even  as  between  vendor  and  vendee.  The  Eng- 
lish cases  on  this  subject  are,  most  of  them, 
well  collected  and  arranged  in  Amos  &  P.  Fixt. 
p.  1,  c.  1;  Id.  (Am.  Ed.  1830)  p.  ISO,  c.  5.  For 
some  still  later,  see  Gib.  Fixt.  p.  15,  c.  2.  The 
American  cases  are  mostly  collected  in  2  Kent, 
Comm.  (3d  Ed.)  345,  note  c.  1  have  said  that 
as  a  general  rule,  they  cannot  be  considered 
an  incident  unless  they  are  affixed.  This  is  not 
universally  so.  A  temporary  disannexing  and 
removal,  as  of  a  millstone  to  be  picked,  or  an 
anvil  to  be  repaired,  will  not  take  away  its  char- 
acter as  a  part  of  the  freehold.  Locks  and  keys 
are  also  considered  as  constructively  annexed; 


and  in  this  country  it  must  be  so  with  many 
other  things  which  are  essential  to  the  use  of 
the  premises.  Our  ordinary  farm  fences  of 
rails,  and  even  stone  walls,  are  affixed  to  the 
premises  in  no  other  sense  than  by  the  power 
of  gravitation.  It  is  the  same  with  many  other 
erections  of  the  lighter  kind  about  a  farm.  I 
shall  hereafter  have  occasion  to  notice  these  and 
a  few  other  like  instances  of  constructive  fix- 
tures. I  admit  that  some  of  the  cases  are  quite 
too  strict  against  the  purchasfer;  but  as  far  as 
I  have  looked  into  them,  and  I  have  examined 
a  good  many,  both  English  and  American,  they 
are  almost  uniformly  hostile  to  the  idea  of  mere 
loose  movable  machinery,  even  where  it  is  the 
main  agent  or  principal  thing  in  prosecuting 
the  business  to  which  a  freehold  propertj'  is 
adapted,  being  considered  as  a  part  of  that  free- 
hold for  any  purpose.  To  make  it  a  fixture,  it 
must  not  only  be  essential  to  the  business  of  the 
erection,  but  it  must  be  attached  to  it  in  some 
way;  at  least,  it  must  be  mechanically  fitted, 
so  as,  in  ordinary  understanding,  to  make  a 
part  of  the  building  itself. 

The  question  has  been  occasionally  examined 
in  this  court  as  between  grantor  and  grantee, 
and  in  some  other  relations.  The  most  material 
cases  are  Heermance  v.  Vernoy,  6  Johns.  5; 
Cresson  v.  Stout,  17  Johns.  116,  121;  Miller  v. 
Plumb,  6  Cow.  6G5;  Austin  v.  Sawyer,  9  Cow. 
39;  and  Raymond  v.  White,  7  Cow.  319.  None 
of  them  treat  a  personal  thing  as  a  fixture  short 
of  physical  annexation;  and  some  are  peculiar- 
ly strong  against  the  purchaser.  The  first  re- 
lated to  a  sale  of  land,  on  which  was  a  bark- 
mill,  and  a  stone  for  grinding  bark,  to  be  used 
in  a  tannery.  The  court  said,  it  seems  to  be 
the  better  opinion  that  the  mill  was  personal 
property:  for  the  millstone,  with  the  building 
covering  it,  was  accessory  to  the  tanning  busi- 
ness, a  matter  of  a  personal  nature.  Taken  up- 
on that  I'eason,  a  saw-mill  or  grist-mill  would 
hardly  have  passed  by  such  a  conveyance;  yet 
it  has  been  settled  ever  since  the  Year  Book 
14  Hen.  VIII.  p.  25,  that  the  stones  of  a  grist- 
mill are  a  part  of  the  freehold,  though  removed 
for  the  purpose  of  being  picked;  and  they  shall 
pass  by  a  sale  of  the  land.  Amos  &  F.  Fixt. 
p.  183.  In  Cresson  v.  Stout,  Mr.  Justice  Piatt 
expressed  his  opinion,  that  frames  in  a  factory 
for  spinning  flax  and  tow,  though  fastened  by 
upright  pieces  extending  to  the  upper  floor,  and 
cleats  nailed  to  the  floor  round  the  feet,  neither 
of  the  machines  being  nailed  to  the  building, 
would  not  be  considered  as  a  part  of  the  free- 
hold. He  thought,  therefore,  that  they  might 
be  levied  on  as  personal  property,  under  a  fi. 
fa.  against  the  owner.  But  the  question  was 
not  finally  decided.  Had  the  judgment  debtor 
been  a  mere  tenant  for  life  or  years,  the  ma- 
chinery erected  bj''  him  would  doubtless  have 
been  subject  to  execution  against  him.  But  he 
appears  to  have  owned  the  fee,  subject  to  a 
mortgage. 

In  the  case  of  Swift  v.  Thompson,  9  Conn. 
63,  the  dictum  of  Piatt,  J.,  was  followed  with 
respect  to  cotton  machinery,  the  posts  of  which 
were  fastened  to  the  floor  by  wooden  screws  set 


58 


WHAT  IS  REAL  PROPERTY. 


into  the  floor.    By   unscrewing,   the  machinery 
could  be  removed  without  injury  to  the  build- 
ing.   Dagget,  J.,  said:    "We  resort,  then,  to  the 
criterion     established     by    the     common     law: 
could  this  property  be  removed  without  injury 
to  the  freehold  ?    The  case  finds  this  fact.    This, 
then,    should   satisfy    us."     The    views   of   the 
learned  judge  are  sustained  by  the  strong  case 
of  Gale  V.Ward,  14  Mass.  352.    There,  the  own- 
er of  the  freehold  had  carding  machines  in  his 
woollen  factory,  "not  nailed  to  the  floor,  nor  in 
any  manner  attached  or  annexed  to  the  build- 
ing, unless  it  was  by  the  leather  band  which 
passed  over  the  wheel  or  pulley,  as  it  is  called, 
to  give   motion   to   the   machines.     This   band 
might  be  slipped  off  the  pulley  by  hand,  and  it 
was  taken  off,  and  the  machines  removed  from 
time  to  time,  when  they  were  repaired.    Each 
machine  was  so  heavy  as  to  require  four  men 
to  move  it  on  the  floor,  and  was  too  large  to  be 
taken   out   at   the    door.    But   it   was    so    con- 
structed as  to  be  easily  unscrewed  and  taken  in 
pieces;     and   the   machines    wei'e    so   taken    in 
pieces,   when   removed  by  the  deputy  sheriff." 
He  had  levied  upon  them  as  being  the  personal 
property  of  the  freeholder,  entirely  distinct  from 
the  realty.    Parker,   C.  J.,   said:    "They  must 
be  considered  as  personal  proi:)erty,  because  al- 
though in  some  sense  attached  to  the  freehold, 
yet  they  could  easily  be  disconnected,  and  were 
capable   of   being   used    in   any   other    building 
erected   for  similar   purposes.    It  is  true,  that 
the  relaxation  of  the  ancient  doctrine  respect- 
ing fixtures  has  beeu  in  favor  of  tenants  against 
landlords;    but  the  principle  is  correct  in  every 
point  of  view."    But  see  Bank  v.  Emerson,  15 
Mass.   159,   and   Whiting  v.   Brastow,   4   Pick. 
310.    Gale  v.  Ward  is  questioned  by  Richard- 
son,  C.  J.,  in  Kettredge  v.   Woods,  3   N.   H. 
506.    Some   of   the    doctrine   in   McLintock    v. 
Graham,  3  McCk)rd,  553,  was  equally  strong  with 
that  in  Gale  v.  Ward.    A  still  was  fixed  in  a 
rock  furnace,   which  furnace  was   built   inside 
and  against  the  wall  of  a  house  that  had  been 
erected  for  the  express  purpose  of  a  still.    The 
whole  stood  on  a  tract  of  land  sold  under  a  fi. 
fa.  against  the  owner,  and  the  court  said  the 
still  did  not  pass.    But  there  was  evidence  of 
the  still  being  excepted  at  the  sheriff's  sale,  and 
sold  to  another;    so  that  the  question  did  not 
rest  entirely  on  annexation.    Besides,  as  to  this 
point,  the  case  was  aft««jvards  shaken  by  Fair- 
is  V.  Walker,  1  Bailey,  540,  which  I  shall  pres- 
ently notice  more  at  large.    Hutchinson,  C.  J., 
in  Wetherbee  v.  Foster,  5  Vt.  142,  denied  that 
potash  kettles  set  in  brick  arches,  with  chim- 
neys, are  real  estate.    But  he  cited  no  authori- 
ty.   The  case  of  Duck  v.  Braddylb,  1  McClel. 
217,    13    Price,   455,   treats   cotton    machinery, 
placed  and  fastened  for  the  purposes  of  stabili- 
ty, by  a  tenant  for  years  in  a  manufactory,  as 
subject  to  be  distrained  by  his  landlord  for  rent, 
and  to  be  taken  in  execution  against  him.    This, 
doubtless,   was   so   under   the   peculiar   circum- 
stances   of    that   case.    Mr.    Gibbons    remarks, 
upon  this  case   (Gib.   Fixt.  20)  that  such   ma- 
chinery would  seem  not  to  be  a  fixture,  if  fasten- 
ed by  bolts  or  screws,  and  capable  of  being  re- 


moved and  replaced  without  injury,  either  to- 
the  machinery  or  the  building.  But  the  ques- 
tion, whether  it  should  be  deemed  a  fixture  as 
between  the  owner  of  the  freehold  and  his  dev- 
isee or  grantee,  could  not  arise;  and,  accord- 
ing to  the  report  in  Price,  the  court  expressly 
refused  to  pass  on  the  question  of  fixture;  ac- 
cording to  McClelland,  they  silently  omitted  to 
notice  the  point. 

The  third  case  which  I  noticed  as  decided  in 
this  court  was  Miller  v.  Plumb.    This  regard- 
ed  an  ashery;    and   the   court   recognized   and 
acted  on  the  general  distinction,  that  things  in. 
any  way  fixed  to  the  freehold,  e.  g.,  potash  ket- 
tles set  in  an  arch  of  mason  work  with  a  chim- 
ney, though  the  arches  were  placed  on  a  plat- 
form and   not  fastened  to  the  building,  w^ould. 
pass  by  a  sale  of  the  premises;   but  it  was  held, 
that  small  kettles,  not  fixed  in  any  way,  though 
necessary  for  use  in  the  ashery,  would  not  pass. 
The  distinction  between  the  relation  of  vendor 
and  vendee,  tenant  and  landlord,  was  distinctly 
considered  and  recognized.     See,  also,  Reynolds 
v.   Shuler,   5   Cow.  323.    The  same   distinction 
was    held    by    Savage,    C.    J.,   in    Raymond   v. 
■White.    The  question  there  was  in  respect  to 
a  heater  used  in  a  tannery,  but  in  no  way  at- 
tached to  the  building.    It  was  placed  in  a  leach 
or   vat,   which    latter   was   detached   from   the 
building,  except  that  a  small  piece  of  board  was 
tacked  with  nails  to  the  vat  and  to  the  side  of 
the  building.    But  there   was   no  necessity   for 
fastening  the  vat,  and  the  fastening  was  of  no 
use  except  to  keep  the  side  standing  while  the 
vat  was  put  together.    The  question  was  really 
one  between  landlord  and  tenant.    But  Savage,. 
C.  J.,  said  the  heater  could  not  be  considered  as 
part  of  the  realty,  even  if  the  person  who  placed. 
it  had  owned  the  tannery.     7   Cow.   321.     In 
Kirwan  v.  Latour,  1  Har.  &  J.  289,  the  sheriff 
had  sold,  under  a  fi.  fa.  against  the  owner,  a 
house   and   lot    with   the   appurtenances.    This 
house  was  built  for  a  distillery;    and  the  imple- 
ments necessary  to  carry  on  the  business  were 
on   the   premises   at  the  time  of  the   sale.    lu 
trover  by  the  owner  for  these,  the  court  held 
that   the   pumps,    cisterns,    iron    grating,    door, 
distillery,  and  horse  mills,  passed  by  the  sher- 
iff's   deed,    but    not    the   joists,    vats,    buckets, 
pickets,    and   faucets.     The   case  went   on   the 
distinction  between  things  affixed  to  the  free- 
hold   and    the    mere    loose    utensils    necessary 
for  carrying  on  the  business.     The  former  were 
held   to  pass,  though  Chase,  J.,   conceded  that 
a    tenant    erecting    them    might    have    taken 
them  away.     It  being  as  he  said  the  same  as 
a   question   between   ordinary  vendor  and  ven- 
dee, "everything  passed  which  was  annexed  to 
the  freehold."    Id.   291.    The  same  thing   was 
said  as  to  the  fixtures  in  an  iron  foundry.    Hare 
V.    Horton,    5   Barn.    &   Adol.    715.    Park,   J., 
said:    "Prima  facie,  a  mere  conveyance  of  the 
foundry   would   have  passed  them."    Taunton, 
J.,   said,   if  the  deed   had  only   mentioned  the 
foimdry,     the     fixtures     would     have     passed. 
"There  are  many  cases  which  show  this."    Pat- 
terson,  J.,   said:    "I   should  be   sorry   to   bring 
into  question  the  decision  of  this  court,  that  a. 


FIXTURES. 


59 


conveyance  of  premises  will  pass  all  that  is  at- 
tached to  them."  And  Bank  v.  Emerson,  15 
Mass.  159,  narrows  the  general  reasons  of  Gale 
V.  Ward.  It  holds  that  a  kettle  fixed  in  brick- 
work in  a  fulling-mill,  passed  to  the  mortgagee 
of  land,  on  which  the  fulling-mill  stood,  though 
the  appurtenances  were  not  mentioned.  The 
court  recognized  the  usual  distinction  in  favor 
of  tenants.  So  they  did  in  Whiting  v.  Bras- 
tow,  4  Pick.  310.  In  Fairis  v.  Walker,  1 
Bailey,  540,  the  plaintiff  sold  and  conveyed  his 
plantation  to  the  defendant.  On  this,  cotton 
was  grown;  and  a  cotton  gin  was  in  a  gin-house 
on  the  premises  attached  to  the  gears.  The 
plaintiff  brought  trover  for  the  gin;  but  the 
court  were  of  opinion  that  it  was  a  fixture,  and 
passed  with  the  freehold.  They  said  that,  as 
between  heir  and  executor,  or  vendor  und  ven- 
dee, "all  things  which  are  necessary  to  the  full 
and  free  enjoyment  of  the  freehold,  and  are 
in  any  way  attached  to  it,  are  held  to  be  fix- 
tures, and  pass  with  it."  In  the  Case  of  Olym- 
pic Theatre,  2  Browne,  279,  285,  the  court  said: 
"The  permanent  stage  is  so  axea  to  tne  free- 
hold that  it  ought  to  be  considered  as  a  part  of 
it.  But  the  movable  scenery  and  flying  stages 
are  not  necessary  accessaries  to  the  enjoyment 
of  the  inheritance.  They  were  only  necessary 
for  the  purposes  of  theatrical  exhibitions,  which 
in  this  respect  must  be  considered  as  a  species 
of  trade.  We  are,  therefore,  of  opinion,  that 
they  do  not  belong  to  the  inheritance,  and  con- 
sequently, are  not  subject  to  the  liens,  particu- 
larly when  conflicting  with  the  claims  of  execu- 
tion creditors."  The  court  recognized  the  dis- 
tinction in  favor  of  tenants;  but  they  appear 
to  consider  the  rule  as  also  very  strict  against 
the  heir  when  the  question  arises  between  him 
and  the  executor,  which  has  been  said  to  be 
the  same  in  respect  to  fixtures  as  between  ven- 
dor and  vendee.  Spencer,  C.  J.,  in  Holmes  v. 
Tremper,  20  Johns.  30.  Miller  v.  Plumb,  6 
Cow.  665.  In  the  Case  of  Olympic  Theatre, 
the  court  say  (2  Browne,  285):  "The  general 
rule  appears  to  be,  that  where  the  instrument 
or  utensil  is  an  accessary  to  anything  of  a  per- 
sonal nature,  as  to  the  carrying  on  a  trade,  it 
is  to  be  considered  a  chattel;  but  where  it  is  a 
necessary  accessary  to  the  enjoyment  of  the 
inheritance,  it  is  to  be  considered  as  a  part  of 
the  inheritance;  a  rule  as  broad  as  that  stated 
in  Heermance  v.  Vernoy,  and  which  has  since 
been  utterly  repudiated  by  the  Pennsylvania 
cases.  In  Gray  v.  Holdship,  17  Serg.  &  R.  413, 
a  copper  kettle  or  boiler  in  a  brew-house  was 
held  to  be  a  part  of  the  freehold,  though  very 
slightly  attached;  and  the  court  mention  the 
wheels,  stone's,  and  bolting-cloths  of  a  mill  as 
parallel  and  familiar  instances.  Id.  415.  So 
the  engine  by  which  a  steam  saw-mill  is  pro- 
pelled, thus  performing  the  usual  oflice  of  a  wa- 
ter-wheel. The  court  mentioned  the  gears  of  a 
mill  as  part  of  the  freehold.  Morgan  v.  Ar- 
thurs, 3  Watts,  140,  and  see  Lemar  v.  Miles,  4 
Watts,  330,  S.  P.  admitted.  So  a  steam  en- 
gine, with  all  its  fixtures,  used  to  drive  a  bark- 
mill  in  a  tannery,  being  erected  by  the  owner 
of  the  freehold,  was  held  to  pass  by  a  sale  of 


the  latter.  Ives  v.  Ogelsby,  7  Watts,  100.  In 
Massachusetts,  two  stoves  fixed  to  the  brick- 
work of  a  chimney  were  held  to  pass,  Goddard 
V.  Chase,  7  Mass.  432.  In  Gib.  Fixt.  17,  the 
learned  author  remarks  that:  "In  Horn  v. 
Baker,  9  East,  215,  it  was  not  doubted  but  the 
distillers'  vats,  supported  upon  brick-work  and 
timber,  but  not  let  into  the  ground,  and  vats 
standing  on  horses  or  frames  of  wood,  were 
goods  and  chattels;  and  that  stills  set  in  brick- 
work, and  let  into  the  ground,  were  fixtures." 
He  adds  that  a  copper  merely  resting  on  a 
brick-work  socket,  and  a  water-butt  standing 
on  the  ground  or  a  wooden  stool,  are  not  fix- 
tures. Otherwise  if  the  copper  were  fastened  in 
brick-work. 

A  deed  conveying  a  saw-mill  was  held  to  pass 
a  mill-chain,  dogs  and  bars,  they  being  in  their 
appropriate  places  at  the  time.  Farrar  v. 
Stackpole,  6  Greenl.  154.  The  great  difliculty 
arose  as  to  the  chain.  This  was  attached  by 
a  hook  to  a  piece  of  a  draft-chain,  which  was 
fastened  to  the  shaft  by  a  spike.  The  chain 
was  prepared  for  being  hooked  and  unhooked 
at  pleasure.  The  premises  in  question  were 
here  conveyed  as  a  saw-mill  eo  nomine.  The 
chain  was  commonly  used  in  drawing  logs  into 
the  mill.  The  court,  therefore,  thought  that  it 
might  pass  as  being  essential  to  the  mill,  and 
therefore  included  in  the  terms  of  the  convey- 
ance. But,  they  added,  "we  are  also  of  opin- 
ion, that  it  ought  to  be  regarded  as  appertain- 
ing to  and  constituting  a  part  of  the  realty." 
See,  in  connection  with  this,  the  remarks  of 
Hart,  Vice  Ch.,  near  the  close  of  his  opinion  in 
Lushington  v.  Sewell,  1  Sim.  435,  as  to  what 
will  pass  by  the  devise  of  West  India  land  by 
the  name  of  a  plantation. 

Certain  things  are  fixtures  or  not,  in  their  own 
nature,  independent  of  the  fact  of  annexation. 
Accordingly,  some  things  which  are  entirely  de- 
tached from  the  freehold  are,  notwithstanding, 
holden  constructively  to  belong  to  and  pass  with 
it.  Such  cases  arise  where  the  fixture  is  de- 
tached for  some  temporary  purpose.  We  before 
noticed  the  removal  of  a  millstone  to  be  picked 
as  one  instance.  Amos  «&  F.  Fixt.  183.  So, 
where  the  stones  and  irons  of  a  grist-mill  were 
accidentally  detached  by  a  flood  carrying  away 
the  main  body  of  the  mill,  they  were  still  hold- 
en  to  continue  a  part  of  the  realty,  and  tliere- 
fore  not  to  be  seizable  on  fi.  ta.  at  the  suit  of 
a  creditor,  as  personal  property.  Goddard  v. 
Bolster,  6  Greenl.  427.  On  the  other  hand,  ar- 
ticles of  furniture  movable  in  their  nature  are 
not  fixtures,  though  attached  by  screws,  nails, 
brackets,  &c.  Such  are  hangings,  pier-glasses, 
chimney-glasses,  book-cases,  carpets,  blinds, 
curtains,  &c.    Gib.  Fixt.  20,  21. 

Whatever  its  use  or  object,  however,  unless  the 
thing  were  physically  annexed  to  the  freehold  in 
someway, it  has  in  general  been  held  not  to  pass 
even  as  between  vendor  and  vendee.  This  was 
held  of  a  stove  standing  on  the  floor  during 
winter,  the  funnel  running  into  the  chimney,  but 
being  loose  and  not  plastered  in.  The  stove  was 
up  at  the  time  of  the  conveyance.  Williams  v. 
Bailey,  3  Dane,  Abr.  152.    So  of  a  padlock,  and 


60 


WHAT  IS  REAL  PROPERTY. 


loose  boards  used  for  putting  up  corn  in  the  bins 
of  a  corn-house,  said  in  Whiting  v.  Brastow,  4 
Pick.  311.  So  of  a  heater,  placed  loose  in  the 
vat  of  a  tannery.  Savage,  Ch.  J.,  in  Raymond 
V.  White,  before  cited.  The  case  of  the  stove 
has  been  questioned,  as  I  shall  notice  hereafter. 

The  cases  of  constructive  annexation,  where 
the  article  is  seldom  or  never  corporally  attach- 
ed to  the  realty,  are  few,  and  may  be  set  down 
as  exceptions  to  the  general  rule.  They  are 
said  to  be  the  charters  or  deeds  of  an  estate  and 
the  chest  containing  them,  deer  in  a  park,  fish 
in  a  pond,  and  doves  in  a  dove  house.  2  Com. 
Dig.  "Biens,"  B;  6  Greenl.  157;  3  Dane,  Abr. 
156;  3  N.  H.  505.  The  deer,  fish,  and  doves 
are  set  down  by  Amos  &  F.  Fixt.  168,  as  heir- 
looms; and  so  of  various  other  animals.  Heir- 
looms are  a  class  of  property  distinct  from  fix- 
tures. But  "the  doors,  windows,  locks,  keys, 
and  rings  of  a  house  will  pass  as  fixtures,  by  a 
con-?eyance  of  the  freehold,  although  they  may 
be  distinct  things;  because  they  are  construct- 
ively annexed  to  the  house."  Amos  &  F:  Fixt. 
183,  and  the  books  there  cited.  Many  other 
obvious  cases  may  be  supposed.  One  is,  our  or- 
dinary Virginia  fence  on  country  farms.  No 
vendor  would  consider  that  as  mere  personal 
property.  And  in  Kittredge  v.  Woods,  3  N.  H. 
503,  it  was  held  that  manure  lying  about  a 
barnyard  passed  by  a  conveyance  of  the  land  as 
an  incident. 

These  instances  seem  fully  to  justify  the 
courts  when  they  speak  of  the  great  difficulty 
in  fixing  on  any  certain  criterion  which  shall 
govern  all  cases.  They  lead  to  a  strain  of  rea- 
soning by  Mr.  Dana,  in  the  3d  volume  of  his 
Abridgment  (page  156)  as  well  by  Weston,  J., 
in  Farrar  v.  Stackpole,  by  which,  if  followed 
out  in  practice,  the  machinery  now  in  question 
might  well  be  considered  as  a  part  of  the  realty, 
and  therefore  the  subject  of  partition.  Mr. 
Dana  says,  that  in  all  the  instances  put  by  him, 
the  articles  "are  very  properly  a  part  of  the 
real  estate  and  inheritance,  and  pass  with  it, 
because  not  the  mere  fixing  or  fastening  to  it 
is  alone  to  be  regarded;  but  the  use,  nature, 
and  intention."  Mr.  Dana  questions  the  de- 
cision in  Williams  v.  Bailey,  before  cited,  de- 
nying that  the  stove  passed.  3  Dana,  Abr.  157. 
See,  also,  Amos  &  F.  Fixt.  154,  155.  And  Wes- 
ton, J.,  says  (6  Greenl.  157):  "Modern  times 
have  been  fruitful  of  inventions  and  improve- 
ments, for  the  more  secure  and  comfortable 
use  of  buildings,  as  well  as  of  many  other  things 
which  administer  to  the  enjoyment  of  life. 
Venetian  blinds,  which  admit  the  ajr  and  ex- 
clude the  sun,  whenever  it  is  desirable  so  to  do, 
are  of  modern  use;  so  are  lightning-rods,  which 
have  now  become  common  in  this  country  and  in 
Europe.  These  might  be  removed  from  build- 
ings without  damage;  yet,  as  suited  and  adapt- 
ed to  the  buildings  upon  which  they  are  placed, 
and  as  incident  thereto,  they  are,  doubtless, 
part  of  the  inheritance,  and  would  pass  by  deed 
as  appertaining  to  the  realty.  But  the  genius 
and  enterprise  of  the  last  half  century  has  been 
in  nothing  more  remarkable  than  in  the  em- 
ployment of  some  of  the  great  agents  of  nature, 


by  means  of  machinery,  to  an  infinite  variety  of 
purposes,  for  the  saving  of  human  labor. 
Hence,  there  has  arisen  in  our  country  a  multi- 
tude of  establishments  for  working  in  cotton, 
wool,  wood,  iron,  and  marble;  some  under  the 
denomination  of  mills,  and  others  of  factories, 
propelled  generally  by  water  power,  but  some- 
times by  steam.  These  establishments  have, 
in  many  instances,  perhaps  in  most,  acquired 
a  general  name,  which  is  understood  to  em- 
brace all  their  essential  parts;  not  only  the 
building  which  shelters,  encloses,  and  secures 
the  machinery,  but  the  machinery  itself.  Much 
of  it  might  be  easily  detached,  without  injury 
to  the  remaining  parts,  or  the  building,  but  it 
would  be  a  very  narrow  construction,  which 
should  exclude  it  from  passing  by  the  general 
name  by  which  the  establishment  is  known, 
whether  of  mill  or  factory.  The  general  prin- 
ciples of  law  must  be  applied  to  new  kinds  of 
property,  as  they  spring  into  existence,  in  the 
progress  of  society,  according  to  their  nature 
and  incidents,  and  the  common  sense  of  the  com- 
munity. The  law  will  take  notice  of  the 
mutations  of  language,  and  of  the  meaning  of 
new  terms,  applied  to  new  subjects,  as  they 
arise.  In  other  words,  it  will  understand 
words  used  by  parties  in  their  contracts,  wheth- 
er executed  or  executory,  whether  in  relation 
to  real  or  personal  estate,  according  to  their 
ordinary  meaning  and  acceptation."  He  then 
supposed  the  steam  saw-mill  at  Bath  to  be  con- 
veyed by  its  name  of  a  steam  saw-mill,  and 
adds:  "If  you  exclude  such  parts  of  the  ma- 
chinery as  may  be  detached  without  injury  to 
the  other  parts,  or  to  the  building,  you  leave  it 
mutilated  and  incomplete,  and  insufficient  to 
perform  its  intended  operations.  The  parties, 
in  using  the  general  term,  would  intend  to  em- 
brace whatever  was  essential  to  it,  according 
to  its  nature  and  design;  and  the  law  would, 
doubtless,  so  construe  the  conveyance  as  to 
effectuate  the  lawful  intention  of  the  parties." 
In  aid  of  these  views,  undoubtedly,  comes  the 
reasoning  of  Lord  Mansfield  on  the  question 
between  the  heir  and  executor  respecting 
the  salt-pans.  Lawton  v.  Salmon,  1  H.  Bl.  259, 
note,  3  Atk.  16,  note  1.  "The  present  case  is 
very  strong.  The  salt  spring  is  a  valuable  in- 
heritance; but  no  profit  arises  from  it  unless 
there  is  a  salt-work,  which  consists  of  a  build- 
ing, &c.,  for  the  purpose  of  containing  the  pans, 
&c.,  which  are  fixed  to  the  ground.  The  in- 
heritance cannot  be  enjoyed  without  them. 
They  are  accessaries  necessary  to  the  use  and 
enjoyment  of  the  principal.  The  owner  erect- 
ed them  for  the  benefit  of  the  inheritance.  He 
could  never  mean  to  give  them  to  the  executor," 
&c.  This  case  shows  how  the  fire  engines  in 
Lawton  v.  Lawton,  3  Atk.  12,  erected  by  the 
tenant  for  life,  and  there  claimed  by  and  allow- 
ed to  his  executor  against  the  remainder-man, 
would  have  been  decided,  had  the  question  been 
between  the  executor  and  heir,  or  vendor  and 
vendee.  The  case  of  the  cider-mill  fixed  in  the 
ground,  which  was  awarded  to  the  executor 
as  against  the  heir,  turned  upon  a  custom.  3 
Atk.  14,  note  2;  1  H.  Bl.  260.    Mr.  Wilbraham, 


FIXTURES. 


61 


who  argued  for  the  executor  and  against  the 
remainder-man,  (in  3  Alk.  14),  and  who  suc- 
ceeded, still  gave  his  opinion,  when  the  salt- 
pan case  came  before  Lord  Mansfield,  that  it 
would  have  been  different  in  respect  to  the  heir; 
and  Lord  Mansfield  expressly  adopted  his  opin- 
ion. These  salt-pans  were  very  slightly  fixed 
with  mortar  to  the  floor,  and  might  be  remov- 
ed without  injuring  the  buildings.  A  steelyard 
hung  in  a  machine  house  was  considered  a  fix- 
ture. Rex  V.  Inhabitants  of  St.  Nicholas,  Glou- 
cester, Cald.  262.  It  was  fixed  for  weighing 
coal  and  other  things  brought  to  market.  Lord 
Mansfield  said  it  must  be  annexed  to  the  free- 
hold in  the  nature  of  the  thing.  "What  is  the 
house?  It  is  the  machine  house.  They  are 
one  entire  thing,  and  are  together  rated  by  the 
common  known  name  which  comprehends  both: 
and  the  principal  purpose  of  the  house  is  for 
weighing.  The  steelyard  is  the  most  valuable 
part  of  the  house.  The  house,  therefore,  ap- 
plied to  this  use,  may  be  said  to  be  built  for 
the  steelyard,  and  not  the  steelyard  for  the 
house."  One  question  was  whether  the  whole 
machine  was  rateable  as  real  estate,  the  steel- 
yard inclusive,  for  the  support  of  the  poor. 
Messrs.  Amos  &  Ferard,  speaking  of  this  case, 
say,  "The  machine  which  had  been  rated  was 
clearly  affixed  to  the  freehold,  and  the  court 
seem  to  rely  upon  that  circumstance  in  deliver- 
ing their  judgment."  Amos  &  F.  Fixt.  209. 
They  then  advert  to  another  case  in  Cald.  266. 
It  is  Rex  V.  Hogg.  There  the  sessions  rated 
a  building  by  the  name  of  "the  engine  house." 
The  sessions  stated,  at  first,  that  "the  engine 
is  not  fixed  to  the  premises,  but  capable  of  be- 
ing moved  at  pleasure."  The  whole  building 
and  machine  were  assessed  at  £36,  though  the 
building,  independent  of  the  machine,  was  worth 
only  two  guineas.  The  court  directed  the  case 
to  be  re-stated.  They  required  the  sessions  to 
state  whether  the  engine  was  worked  "with 
water  or  horses;  whether  the  house  was  a  dwell- 
ing-house, or  built  for  the  purpose  of  receiv- 
ing the  engine,  and  whether  it  was  used  for  any 
other  purpose;  and  in  what  manner  the  engine 
was  put  up  in  the  engine  house,  and  what  its 
size  and  bulk."  The  counsel  afterwards  con- 
sented to  a  set  of  facts;  among  them,  they 
agreed  "that  the  engine  was  worked  generally 
with  water,  but  frequently  by  hand;  that  the 
building  was  not  a  dwelling-house,  nor  was  it 
erected  for  the  purpose  of  receiving  the  engine, 
but  formerly  was  used  for  the  purpose  of  turning 
bobbins,  and  as  a  weaver's  shop;  but  is  now  used 
for  the  purpose  of  carrying  on  the  cotton  manu- 
factory, there  being  in  the  same  buildingtwo  oth- 
er engines,  one  of  which  was  used  for  the  pur- 
pose of  carding  and  the  other  for  tumming  cot- 
ton, which  tumming  is  another  process  of  the 
same  manufactory.  All  the  engines  are  placed 
on  the  floor,  and  noways  annexed  or  fastened 
to  the  same,  but  may  be  moved  at  pleasure,  and 
carried  out  and  worked  in  any  other  place,  eith- 
er by  means  of  water  or  manual  labor,  and  are 
not  adapted  to  any  particular  building.  The 
frame  in  which  the  engine  stands  is  twelve  feet 
in  length,  three  feet  eleven  inches  in  breadth, 


and  two  feet  nine  inches  \n  height;  the  semi- 
diameter  of  the  largest  cylinder,  with  a  small 
roller  at  the  top,  rising  twenty  inches  above  the 
frame,  the  engine  sinking  in  the  same  seventeen 
inches."  Still  the  difficulty  as  to  annexation 
remained;  for  one  question  was,  whether  the 
machine  was  rateable  except  as  a  part  of  the 
real  property.  CaJdecott,  in  support  of  the  as- 
sessment, complained  that  the  return  was  eva- 
sive in  merely  saying  that  the  engine  was  not 
annexed  or  fastened  to  the  floor;  wheretis  it 
might  be  fastened  to  the  building  in  some  other 
way.  The  opposing  counsel  said  it  was  placed 
on  the  floor  like  a  chair.  Ashurst,  J.,  said  the 
case  was  still  imperfect;  for  it  is  not  stated 
negatively,  that  this  engine,  while  it  is  in  a 
state  of  working,  is  not  in  some  way  or  other 
fixed  to  the  house.  It  is  only  stated  that  it  is 
not  fixed  to  the  floor;  but  it  may  bo  fixed  to  the 
walls  of  the  building  without  being  fixed  to  the 
floor.  We  can  assume  no  facts  on  either  side; 
but  one  should  suppose  that  it  must  be  fastened 
in  some  way,  otherwise,  as  it  is  worked  by  wa- 
ter, the  weight  of  the  water  must  displace  it; 
and  if  so,  it  is  exactly  the  case  of  Rex  v.  In- 
habitants of  St.  Nicholas,  in  Gloucester.  Dul- 
ler, J.,  said,  speaking  of  the  right  to  the  engine 
as  between  executor  and  heir,  or  tenant  and 
landlord,  "If  the  engine  were  clearly  distinct, 
it  would,  in  all  cases,  go  to  the  executor.  But 
here,  all  being  under  lease  for  a  term,  all  would 
go  to  the  executor.  Grose,  J.,  said:  "This  is 
an  engine  house  fitted  up  with  an  engine,  but 
whether  that  is  fixed  or  not  is  uncertain.  The 
engine  is  evidently  a  part  of  the  house;  for 
Walmesleyis  stated  to  be  lessee  of  the  premises, 
which  comprehend  the  whole,  both  house  and 
engine.  I  therefore  consider  this  as  an  entire 
thing."  Messrs.  Amos  &  Ferard,  in  comment- 
ing upon  this  case,  admit  that  it  is  generally 
considered  as  deciding  that  a  poor  rate  may  be 
assessed  on  mere  personal  property  rented  with 
a  building.  But,  they  say,  the  better  opinion 
seems  to  be  that  it  cannot;  axid  they  seem  to 
rely  on  what  Ashurst,  J.,  said,  as  showing  that 
the  engine  was  probably  considered  real  estate. 
The  two  last  cited  cases  seem  to  allow  that 
the  shghtest  permanent  annexation  of  machin- 
ery is  sufficient  to  make  it  a  part  of  the  realty; 
and  sustain  the  reasoning  of  Weston,  J.,  in  Far- 
rar  v.  Stackpole,  so  far  as  it  maintains  that  the 
chain  was  a  fixture,  because  it  was  hooked  for 
use  as  a  part  of  the  permanent  machinery.  He 
said:  "The  chain  is  the  last  in  the  parts  of  the 
machinery,  to  which  the  impelling  power  is  com- 
municated, to  effect  the  object  in  view.  Its 
actual  location  in  the  succession  of  parts  can 
make  no  difference."  See,  also,  the  remarks  of 
Amos  &  F.  Fixt.  p.  4,  note  (a)  on  the  case  of 
Davis  V.  Jones,  2  Barn.  &  Aid.  165.  A  later 
case  is  somewhat  material.  Colegrave  v.  Dias 
Santos,  2  Barn.  &  C.  76,  was  decided  in  Tr. 
term,  1823,  by  the  king's  bench.  3  Dowl.  & 
R.  255.  It  arose  between  the  vendor  and  ven- 
dee of  a  mansion  house  with  the  lands,  called 
"Downsell  Hall,"  in  Essex.  A  conveyance  was 
executed,  and  the  defendant  entered  into  pos- 
session.    To   the   house   belonged   certain    arti- 


62 


WHAT  IS  REAL  PROPERTY. 


cles  which  were  all  taken  possession  of  with  it 
by  the  vendee,  and  none  of  them  had  been  ex- 
cepted either  in  the  particulars  of  the  sale, 
which  was  by  auction,  or  the  deed  of  convey- 
ance. They  consisted  chiefly  of  "bells  and  bell- 
pulls,  stoves,  grates,  blinds,  shelves,  coppers, 
a  water-butt,  and  other  articles  of  the  same 
kind"  (3  Dowl.  &  R.  255);  or,  according  to  2 
Barn.  &  C:  "Stoves,  grates,  kitchen-ranges, 
closets,  shelves,  brewing-coppers,  cooling-cop- 
pers, mash-tubs,  locks,  bolts,  blinds,"  &c.  The 
plaintiff,  the  vendor,  demanded  them  all  of  the 
defendant,  the  vendee,  by  the  name  of  fixtures; 
and,  on  the  latter  refusing  to  deUver  them, 
brought  trover;  which  it  was  held  would  not 
lie  for  any  of  them.  It  was  conceded  that  some 
of  the  articles  might  be  movables.  In  2  Barn. 
&  C,  Abbott,  C.  J.,  said,  "three  or  four  trifling 
articles."  What  they  were  is  not  stated  by  ei- 
ther report;  but  the  recovery  was  denied  for  the 
whole,  inasmuch  as  there  was  a  general  demand 
and  refusal  of  the  whole  as  fixtures.  Maryatt 
and  Piatt  mentioned  stoves,  bell-pulls,  shelves, 
and  water-butts,  as  movables,  none  of  which 
were  permanently  attached  to  the  house,  or 
could  be  considered  as  part  of  it.  Bayley,  J., 
asked:  "Is  that  so  clear?  To  whom  would 
such  articles  pass,  the  heir  or  executor?"  The 
counsel  submitted  they  would  pass  to  the  exec- 
utor. Best,  J.,  asked:  "Is  not  Wynne  v. 
Ingleby,  1  Dowl.  &  R.  247,  a  case  of  ranges, 
ovens,  and  set-pots,  taken  by  a  fi.  fa.  against 
the  owner  of  the  freehold  (see  s.  c.  nom.  Winn 
V.  Ingilby,  5  Barn.  &  Aid.  625),  an  express  de- 
cision to  the  contrary?  Has  the  vendor  a  right 
to  dismantle  a  house  in  order  to  remove  such 
articles?"  For  this  colloquy,  see  3  Dowl.  & 
R.  256.  I  cannot  learn  from  the  books  that 
there  has  been  much  litigation  concerning  fix- 
tures as  between  vendors  and  vendees  of  houses 
since  the  decision  of  Colgrave  v.  Dias  Santos. 
The  rule  of  that  case  has  lately  been  held  to 
prevail  as  between  mortgagor  and  mortgagee. 
Longstaff  v.  Meogoe,  2  Adol.  &  E.  167.  Yet 
the  English  cases  are  extremely  difHcult  to  rec- 
oncile, especially  those  which  have  arisen  be- 
tween heir  and  executor.  See  Amos  &  P.  Fixt. 
p.  151,  c.  4,  §  2. 

There  is  also  considerable  conflict  in  the 
American  cases,  as  may  be  seen  by  those  which 
I  have  cited.  The  inconsistency  appears  to 
have  arisen  occasionally  from  not  attending  to 
the  distinction  maintained  by  the  older  cases, 
between  the  two  relations  of  vendor  and  ven- 
dee, and  tenant  and  landlord;  though  some- 
times it  has  also  arisen  from  a  difference  as  to 
the  mode  of  annexation.  In  Powell  v.  Manu- 
facturing Co.,  3  Mason,  459,  Fed.  Cas.  No.  11,- 
357,  both  the  New  York  and  Massachusetts 
cases  were  cited,  to  prove  that  the  wheel  and 
gearing  of  a  cotton  factory  were  not  to  be  con- 
sidered a  part  of  the  freehold,  in  such  sense 
that  the  widow  could  have  dower  of  them. 
Story,  J.,  was  driven  to  say  that  the  carding 
machine  in  Gale  v.  Ward,  though  attached  to 
the  wheel  by  a  leather  band,  was  not  strictly  a 
fixture;  and  that  the  fastening  in  Crosson  v. 
Stout,  would  not  make  the  machinery  so.    Yet 


certainly  the  wheel,  and  most,  if  not  all,  the 
gearing  mentioned  and  described  in  3  Mason, 
and  Fed.  Cas.  No.  11,357,  might  have  been  as 
easily  removed  as  many  other  things  attached  to 
the  freehold,  which  have  been  treated  as  mova- 
bles. The  case  of  the  cotton  gin,  (in  1  Bailey, 
540)  the  English  steelyard  and  engine  cases 
cited  from  Caldecott,  and  Colgrave  v.  Dias 
Santos,  with  several  other  English  cases,  show 
that  a  very  slight  affixing  for  permanent  use  is 
sufficient.  The  mere  hooking  of  a  chain  in 
Farrar  v.  Stackpole,  was  sufficient  under  the 
circumstances.  Why  is  the  key  of  a  door- 
lock  deemed  a  fixture?  Because  it  makes  a 
part  of  the  permanent  machinery  used  to  se- 
cure the  door.  Yet  it  is  kept  entirely  sepa- 
rate, except  when  employed  in  locking  and  un- 
locking the  door.  The  mode  of  annexation  must 
evidently  depend  on  the  manner  in  which  the 
parts  of  machinery  are  used.  The  saws  in  the 
saw-mill  may  be  in  two  sets,  one  at  work,  while 
the  other  is  undergoing  repairs,  or  filing  and 
sharpening;  and  either  may  be  easily  removed 
without  violence  to  the  frame  where  they  be- 
long; are  either  to  be  considered  the  less  fix- 
tures for  these  reasons?  Gibbons  says,  if  a 
copper  fastened  in  brick-work  have  a  movable 
cover,  the  latter  is  a  fixture;  because  the  cop- 
per is  the  principal  thing  and  the  latter  a  mere 
appendage.  Gib.  Fixt.  17.  The  case  of  Davis 
v.  Jones,  2  Barn.  &  Aid.  165,  has  accordingly 
been  thought  unexplainable  by  the  principles 
professedly  adopted  in  the  case  itself.  Certain 
jibs  making  part  of  an  entire  machine,  which 
was  clearly  a  fixture,  were  treated  as  mere  per- 
sonal property.  See  Amos  &  F.  Fixt.  p.  4, 
note  (a). 

The  ancient  distinction,  however,  between  ac- 
tual annexation  and  total  disconnection,  is  the 
most  certain  and  practical;  and  should  there- 
'  fore  be  maintained,  except  where  plain  author- 
ity or  usage  has  created  exceptions.  The  rea- 
soning of  Mr.  Dane,  and  of  the  learned  judge  in 
Farrar  v.  Stackpole,  before  cited,  while  it  can- 
not be  too  extensively  applied  to  modern  ma- 
chinery in  subordination  to  that  distinction,  does 
not  appear  to  be  sustained  by  authority,  when 
it  seeks  to  raise  a  general  doctrine  of  construct- 
ive fixtures,  from  the  moral  adaptation  of  what 
is  in  fact  a  mere  movable,  to  the  carrying  on  a 
farm  or  factory,  &c.,  however  essential  the 
movable  may  be  for  such  purpose.  The  argu- 
ment in  that  shape  proves  too  much.  Such 
adaptation  and  necessity  might  be  extended 
even  to  the  use  of  domestic  animals  on  a  farm, 
and  certainly  to  many  implements  in  a  manu- 
factory which  could  never  be  recognized  as  fix- 
tures, without  utterly  confounding  the  rule  by 
which  the  rights  of  the  heir  or  the  purchaser 
have  been  long  governed.  The  judicial  appli- 
cation of  the  rule  is  already  sufficiently  nice 
and  difficult.  As  between  heir  and  executor, 
it  was  partially  altered  by  2  Rev.  St.  (2d  Ed.) 
p.  24,  §  6,  subd.  4.  By  this,  "things  annexed  to 
the  freehold,  or  to  any  building,  for  the  purpose 
of  trade  or  manufacture,  and  not  fixed  into  tlie 
wall  of  a  house,  so  as  to  be  essential  to  its  sup- 
port," pass  to  the  executor.    And  see  3  Rev.  St. 


FIXTURES. 


63 


<2d  Ed.)  pp.  638,  639.  This  provision  certainly 
indicates  anything  but  a  legislative  intent  to 
enlarge  the  rights  of  freehold.  Taken  literally 
it  would  strip  the  heir  of  the  wheels,  gearing, 
and  all  the  other  machinery  fixed  in  the  ordinary 
way  to  a  mill  or  manufactory  inherited  by  him. 
It  is  certainly  contrary  to  the  ancient  common 
law  (see  11  Vin.  1G7,  "Executor,  Z,"  pi.  6;  Amo3 
-&  F.  Fixt.  133,  and  cases  there  cited  on  to  page 
138),  and  seems  to  derive  very  questionable 
countenance  from  more  modem  authority.  Squire 
V.  Mayer,  a  short  note  of  which  is  given  in  2 
Freem.  2-16,  goes  the  farthest  towards  our  stat- 
ute rule;  but  how  very  doubtful  this  and  some 
other  modern  causes  of  the  like  tendency  are, 
may  be  seen  by  Amos  &  F.  Fixt.  p.  151,  c.  4,  § 
2,  and  cases  there  cited.  See,  also,  Gib.  Fixt.  11, 
12.  As  between  devisee  and  executor,  the  sug- 
gestion of  Vice-Chancellor  Hart,  in  Lushington 
V.  Sewell,  1  Sim.  435,  480,  seems  to  go  beyond 
any  adjudged  case  in  favor  of  the  freehold. 
He  inclined  to  think  that  the  devise  of  a  West 
India  estate  would  pas>^  the  incidental  stock  of 
slaves,  cattle,  and  implements;  because  such 
things  are  essential  to  render  the  estate  pro- 
ductive; and,  denuded  of  them,  it  would  be 
rather  a  burden  than  a  benefit. 

It  is,  I  think,  obvious,  not  only  from  our  stat- 
ute, but  from  both  the  English  and  American 
cases,  that  there  is  a  stronger  tendency  to  con- 
sider fixtures  for  the  purposes  of  trade  as  mere 
personal  property,  than  we  find  either  in  regard 
to  those  of  an  agricultural  or  domestic  charac- 
ter. See  Gib.  Fixt.  10,  11;  Amos  &  F.  Fixt. 
(Ed.  1830)  138.  By  several  English  cases  cit- 
ed in  these  treatises,  the  executor  was  in  re- 
spect to  trade  fixtures  preferred  in  his  claim 
against  the  heir,  though  the  doctrine  is  far 
from  being  settled.  By  several  American  cases, 
we  have  seen  that  such  fixtures  were  denied  to 
have  passed  even  as  between  the  vendor  and 
vendee  of  the  freehold;  though  such  a  rule  de- 
rives no  countenance,  or  certainly  very  little, 
from  any  English  authority;  and  seems  to  be 
against  the  weight  of  American  adjudication. 

On  the  whole,  I  collect  from  the  cases  cited, 
and  others,  that,  as  a  general  rule,  in  order  to 
come  within  the  operation  of  a  deed  conveying 
the  freehold,  whether  by  metes  and  bounds  of 
a  plantation,  farm,  or  lot,  &c.,  or  in  terms  de- 
noting a  mill  or  factory,  &c.,  nothing  of  a  na- 
ture personal  in  itself  will  pass,  unless  it  be 
brought  within  the  denomination  of  a  fixture 
by  being  in  some  way  permanently,  at  least 
habitually,  attached  to  the  land  or  some  build- 
ing upon  it.  It  need  not  be  constantly  fasten- 
ed. It  need  not  be  so  fixed  that  detaching  will 
disturb  the  earth  or  rend  any  part  of  the  build- 
j  ing.  I  am  not  prepared  to  deny  that  a  machine 
movable  in  itself  would  become  a  fixture  from 
being  connected  in  its  operations  by  bands,  or 
in  any  other  way,  with  the  permanent  machin- 
ery, though  it  might  be  detached,  and  restored 
to  its  ordinary  place,  as  easily  as  the  chain  in 
Farrar  v.  Stackpole.  I  think  it  would  be  a 
fixture  notwithstanding.  But  I  am  unable  to 
discover,  from  the  papers  before  us,  that  any 
of  the  machines  in  question  before  the  commis- 


sioners were  even  slightly  connected  with  the 
freehold.  For  aught  I  can  learn,  they  were 
all  worked  by  horses  or  by  hand,  having  no 
more  respect  to  any  particular  part  of  the  build- 
ing, or  its  water-wheel,  than  the  ordinary  mov- 
able tools  of  such  an  establishment.  These 
would  have  their  common  place,  and  be  essen- 
tial to  its  business.  So  a  threshing  machine 
and  the  other  implements  of  the  farmer.  But  it  i/ 
would  be  a  solecism  to  call  them  fixtures,  where 
they  are  not  steadily  or  commonly  attached, 
even  by  bands  or  hooks,  to  any  part  of  the 
realty.  The  word  fixtures  is  derived  from  the 
things  signified  by  it  being  fastened,  or  fixed. 
"It  is  a  maxim  of  great  antiquity,  that  what- 
ever is  fixed  to  the  realty  is  thereby  made  a 
part  of  the  realty,  to  which  it  adheres,  and  par- 
takes of  all  its  incidents  and  properties."  Toml. 
Law  Diet.  "Fixtures."  Hence  fixtures  are  de- 
fined to  be  "chattels  or  articles  of  a  personal 
nature  which  have  been  affixed  to  the  land." 
Id.  "It  is  an  ancient  principle  of  law,"  says 
Weston,  J.,  in  Farrar  v.  Stackpole,  "that  cer- 
tain things,  which,  in  their  nature,  are  personal 
property,  when  attached  to  the  realty,  become 
part  of  it  as  fixtures."  And  see  Amos  &  F. 
Fixt.  p.  1,  c.  1. 

It  is  not  to  be  denied  that  there  are  strong 
dicta,  and  perhaps  we  may  add  the  principle  of 
several  adjudicated  exceptions,  upon  which  we 
might,  with  great  plausibility,  declare  the  ma- 
chines in  question,  so  essential  to  the  purposes 
of  the  manufactory,  although  entirely  dissoci- 
ated with  the  freehold,  a  fit  subject  for  enter- 
ing into  the  list  of  constructive  fixtures.  The 
general  importance  of  the  rule,  however,  which 
goes  upon  corporal  annexation,  is  so  great,  that 
more  evil  will  result  fi-om  frittering  it  away 
by  exceptions,  than  can  arise  from  the  hardship 
of  adhering  to  it  in  particular  cases. 

Nor  can  we  possibly  say,  as  in  the  case  of  the 
steelyard  or  engine  in  the  cotton  manufactory, 
cited  from  Caldecott,  that  the  machines  in  ques- 
tion must,  in  the  nature  of  the  thing,  be  annex- 
ed to  the  freehold.  It  appears,  by  the  papers 
before  us,  that  they  have  been  used  with  the 
factory  for  several  years,  and  have  passed  with 
it  in  conveyances.  But  the  affidavits  do  not 
state  that  they  are  affixed  in  any  way.  They 
are  treated  by  both  parties,  for  aught  I  can 
see,  as  entirely  detached,  though  the  defendant 
ventmres  to  express  an  opinion  that  some  of 
them  constitute  a  part  of  the  factory  itself.  He 
gives  no  particulars,  however,  from  which  we 
can  say  they  may  make  a  part,  any  more  than 
if  they  were  so  many  chairs  to  sit  on. 

It  is  true,  that  this  factory  seems  to  have 
been  pretty  much  dismantled.  The  principal 
part  of  its  machinery  has  been  treated  as  mere 
movables.  Both  the  defendant  and  Mr.  Smith, 
one  of  the  commissioners,  concur  in  stating 
that  nothing  about  the  factory  was  treated  as 
a  fixture,  except  the  water-wheel,  fulling-mill, 
dye-kettle,  press,  and  tenter-bars;  and  Mr. 
Smith  says  the  factory  was  impelled  by  a  valu- 
able water-power.  The  susnicion  would,  in- 
deed, be  quite  strong,  from  such  facts  standing 
alone,  that,  at  least,  some  of  the  important  and 


64 


WHAT  IS  KEAL  PROPERTY. 


valuable  machinery  excepted,  might  be  brought 
within  the  legal  notion  of  fixtures;  and  yet  the 
defendant  himself  has  not  ventured  to  state, 
as  I  can  find,  that  any  part  of  the  particular 
machinery  excepted  from  the  report,  was  in  the 
least  dependent  for  its  operation  on  the  water- 
wheel  or  other  permanent  parts  of  the  factory; 
while  Mr.  Goodrich,  one  of  the  commissioners, 
says,  in  his  affidavit,  that  the  excepted  machin- 
ery  was  not  affixed   to  the  building  or   land. 


There  the  case  is  left;  not  one  of  the  deponents 
pointing  out  any  connection  whatever.  No  au- 
thority cited  on  the  argument,  nor  any  that  1 
have  seen,  goes  so  far  as  to  say  that  mere  loose 
and  movable  machines  totally  disconnected 
with,  and  making  no  part  of  the  permanent 
machinery  of  a  factory,  can  be  considered  a  fix- 
ture even  as  between  vendor  and  vendee.  We 
think  the  motion  must  be  denied  with  costs,  and 
the  report  of  the  commissioners  is  confirmed. 


FIXTUKES. 


65 


LASSELL  V.  REED. 

(6  Greenl.  222.) 

Supreme  Judicial  Court  of  Maine.     1829. 

Mr.  Crosby,  for  plaintiff.  Mr.  Johnson,  for 
defendant. 

MELLEX,  C.  J.  Upon  examination  of  the 
lease  referred  to  in  the  statement  of  facts,  we 
do  not  perceive  any  covenants  on  the  part  of 
Reed  which  have  any  direct  bearing  on  the 
questions  submitted  for  our  decision.  Nothing 
is  said  as  to  the  management  of  the  farm  in  a 
husbandlike-manner,  or  surrendering  it  at  the 
end  of  the  year  in  as  good  order  and  condition 
as  it  was  at  the  commencement  of  the  lease. 
The  lease  is  also  silent  on  the  subject  of  ma- 
nure. The  same  kind  of  silence  or  inattention 
has  been  the  occasion  of  the  numerous  deci- 
sions which  are  to  be  found  in  the  books  of  re- 
ports between  lessors  and  lessees,  mortgagors 
and  mortgagees,  and  grantors  and  grantees,  or 
those  claiming  under  them,  in  relation  to  the 
legal  character  and  ownership  of  certain  arti- 
cles or  species  of  property,  connected  with  or 
appertaining  to  the  main  subject  of  the  convey- 
ance or  contract.  A  few  words,  inserted  in 
such  instruments,  expressive  of  the  meaning  of 
the  parties  respecting  the  subject,  would  have 
prevented  all  controversy  and  doubt.  In  the 
absence  of  all  such  language,  indicating  their 
intention  as  to  the  particulars  above  alluded  to, 
courts  of  law  have  been  obliged  to  settle  the 
rights  of  contending  claimants,  in  some  cases 
accot-ding  to  common  understanding  and  usage; 
thus  window  blinds,  keys,  &c.,  are  considered 
as  part  of  the  real  estate  (though  not  strictly 
speaking  fixtures),  or  rather  as  so  connected 
with  the  realty  as  always  to  pass  with  it.  In 
other  cases,  as  between  landlord  and  tenant, 
the  question  has  been  settled  upon  the  princi- 
ples of  general  policy  and  utility;  as  in  the 
case  of  "erections  for  the  purpose  of  carrying  on 
trade,  or  the  more  profitable  management  of  a 
farm  by  the  tenant.  It  does  not  appear  by  the 
facts  before  us,  that  there  is  any  general  usage, 
in  virtue  of  which  the  manure  made  on  the 
farm  by  the  cattle  of  the  lessee  during  the  term 
of  his  lease  is  considered  as  belonging  to  him 
exclusively,  or  to  the  lessor,  or  to  both  of 
them;  and  we  have  not  been  able  to  find  any 
case  directly  applicable  to  the  present.  There 
being  no  usage,  nor  such  decision,  nor  expressed 
intention  of  the  parties  to  guide  us,  the  case  is 
one  which  must  be  decided  on  the  principles  of 
policy  and  the  public  good;  for  we  do  not  deem 
the  case  cited  from  Espinasse  as  applicable. 
The  opinion  there  given  was  founded  on  cer- 
tain expressions  in  the  lease,  by  means  of  which 
the  lessee  was  considered  as  a  trespasser  in  re- 
moving the  manure  from  the  farm  at  the  end 
of  the  lease. 

What  then  does  policy  and  the  public  good 
dictate  and  require  in  the  present  case?  Be- 
fore answering  the  question  we  would  observe 
that  we  do  not  consider  the  case  in  any  way 
changed  by  the  fact  that  a  part  of  the  fodder 

GATES.R.P.— 5 


was  carried  on  to  the  farm  by  the  defendant, 
and  a  part  of  the  cattle  on  the  farm  were  those 
leased;  for  the  purposes  of  the  lease,  such  fod- 
der and  such  cattle  must  be  considered  as  be- 
longing to  the  tenant  during  the  term;  and  he 
must  be  considered  as  the  purchaser  of  the  fod- 
der growing  on  the  land,  by  the  contract  of 
lease,  as  much  as  if  he  should  purchase  it  else- 
where on  account  of  the  want  of  a  sufficiency 
produced  by  the  farm;  because  a  farm  not 
yielding  a  sufficiency  would  command  the  less 
rent  on  that  account.  Numerous  cases  show 
that  a  tenant,  at  the  termination  of  his  lease, 
may  remove  erections  made  at  his  own  ex- 
pense for  the  purpose  of  carrying  on  his  trade; 
because  it  is  for  the  public  good  that  such  spe- 
cies of  enterprise  and  industry  should  be  en- 
couraged; and  where  the  parties  are  silent  on 
the  subject  in  the  lease,  the  law  decides  what 
principle  best  advances  the  public  interest  and 
accords  with  good  policy,  and  by  that  principle 
settles  the  question  of  property.  It  is  our  duty 
to  regard  and  protect  the  interests  of  agricul- 
ture as  well  as  trade.  It  is  obviously  true,  as 
a  general  observation,  that  manure  is  essential 
on  a  farm;  and  that  such  manure  is  the  prod- 
uct of  the  stock  kept  on  such  farm  and  rehed 
upon  as  annually  to  be  appropriated  to  enrich 
the  farm  and  render  it  productive.  If  at  the 
end  of  the  year,  or  of  the  term  where  the  lease 
is  for  more  than  a  year,  the  tenant  may  law- 
fully remove  the  manure  which  has  been  ac- 
cumulated, the  consequence  will  be  the  impov- 
erishment of  the  farm  for  the  ensuing  year;  or 
such  a  consequence  must  be  prevented  at  an 
unexpected  expense,  occasioned  by  the  conduct 
of  the  lessee;  or  else  the  farm,  destitute  of 
manure,  must  necessarily  be  leased  at  a  re- 
duced rent  or  unprofitably  occupied  by  the  own- 
er. Either  alternative  is  an  unreasonable  one; 
and  all  the  above-mentioned  consequences  may 
be  avoided  by  denying  to  the  lessee  what  is 
contended  for  in  this  action.  His  claim  has  no 
foundation  in  justice  or  reason,  and  such  a 
claim  the  laws  of  the  land  cannot  sanction.  It 
is  true  that  the  defendant  did  not  remove  and 
carry  away  any  manure,  except  what  was  lying 
in  heaps,  probably  adjoining  the  barn  in  the 
usual  places;  but  still  if  he  had  a  right  to  re- 
move those  heaps,  why  had  he  not  a  right  to 
travel  over  the  farm  and  collect  and  remove 
as  much  as  he  could  find  scattered  upon  the 
ground  during  the  summer  and  autumn  by  the 
cattle  in  their  pastures?  In  both  instances  the 
manure  was  the  product  of  his  cattle;  yet  who 
ever  claimed  to  exercise  such  a  right,  or  pre- 
tended to  have  such  a  claim?  The  argument 
proves  too  much,  and  leads  to  impossibilities  in 
practice,  as  well  as  to  something  in  theory 
which  bears  a  strong  resemblance  to  an  ab- 
surdity. 

We  do  not  mean  to  be  understood  by  this 
opinion,  as  extending  the  principles  on  which  it 
is  founded  to  the  case  of  tenants  of  livery  sta- 
bles in  towns,  and  perhaps  some  other  estate, 
having  no  connection  with  the  pursuits  of  agri- 
culture; other  principles  may  be  applicable  in 
such  circumstances;    but  as  to  their  application 


66 


WHAT  IS  REAL  PROPERTY. 


or  their  extent  we  mean  to  give  no  opinion  on 
this  occasion. 

The  case  most  nearly  resembling  the  present 
is  that  of  Kittredge  v.  Woods,  3  N.  H.  503,  in 
which  it  was  decided  that  when  land  is  sold 
and  conveyed,  manure  lying  about  a  bam  upon 
the  land,  will  pass  to  the  grantee,  as  an  inci- 
dent to  the  land,  unless  there  be  a  reservation 
of  it  in  the  deed.     The  chief  justice  observed 


that  the  question  would  generally  arise  between 
lessor  and  lessee,  and  very  plainly  intimates 
an  opinion  that  a  lessee,  after  the  expiration  of 
his  lease,  would  have  no  right  to  the  manure 
left  on  the  land.  On  the  whole,  we  are  all  of 
opinion  that  the  defence  is  not  sustained,  and 
that  the  defendant  must  he  called.  According 
to  the  agreement  of  the  parties,  judgment  must 
be  entered  for  $15.00  and  costs. 


I 


FIXTURES. 


67 


HARRIS  V.  SCOVEL. 
(48  N.  W.  173,  85  Mich.  32.) 
Supreme  Court  of  Michigan.     Feb.  27,  1891. 
Error    to    circuit    court,     Wayne    county; 
George  S.  Hosmer,  Judge. 

Eraser  &  Gates,  for  apiJellant.  Cutcheon, 
Stellwagen  &  Fleming,  for  appellee. 

MORSE,  J.  This  is  an  action  in  trover  for 
the  conversion  of  2,000  fence-rails,  commen- 
ced in  justice  court,  and  subsequently  appeal- 
ed to  the  circuit  court  of  Wayne  county. 
Plaintiff  recovered  judgment  in  both  courts. 
The  plaintiff,  in  the  partition  of  real  estate, 
February  6,  18S6,  became  the  owner  of  a 
piece  of  land  17  feet  wide  and  1,601  feet  in 
length.  There  was  then  a  fence  on  the  land 
which,  before  the  partition,  made  a  lane. 
She  sold  the  land  to  defendant  October  3, 
18s8.  The  deed  of  conveyance  was  a  war- 
ranty deed  in  the  ordinary  form.  Having  no 
use  for  a  lane  on  the  premises,  about  a  year 
before  she  sold  to  the  defendant  the  plain- 
tiff took  down  the  fence,  and  piled  up  the 
rails  on  the  premises,  intending,  as  she  testi- 
fies, to  remove  them  to  a  farm  that  she  own- 
ed in  Dearborn.  She  had  drawn  84  posts 
upon  this  land,  and  made  some  preparation 
to  build  a  board  fence  as  a  division  fence  be- 
tween her  land  and  that  of  others,  as,  at  the 
time  the  partition  was  made,  it  left  the  prem- 
ises allotted  to  her  open  and  unfenced.  She 
testified,  against  objection,  that  at  the  time 
she  made  the  agreement  with  defendant  to 
sell  him  the  land  she  reserved  the  rails. 
There  was  no  reservation  in  the  deed.  The 
rails,  prior  to  being  piled  up  by  plaintiff,  had 
been  in  this  lane  fence  nearly  50  years. 
Plaintiff  had  no  use  for  the  lane  after  the 
partition.  Defendant  testified  that  plaintiff, 
when  making  the  agreement  to  sell,  wanted 
to  reserve  the  rails,  but  he  would  not  con- 
sent to  it,  and  bought  the  place  as  it  was. 
The  circuit  judge  submitted  the  question  to 


the  jury,  instructing  them  that  the  raUs  piled 
upon  the  premises,  and  not  being  in  any  ex- 
isting fence  at  the  time  of  the  sale,  were  per- 
sonal property,  and  that,  unless  they  found 
that  the  plaintiff  sold  the  rails  to  the  defend- 
ant,—agreed  that  they  should  go  with  the 
land,— she  was  entitled  to  recover.  The  court 
was  right,  and  the  judgment  must  be  affirm- 
ed. Rails  piled  up,  under  the  circumstances 
that  these  were,  are  personal  property.  There 
can  be  no  claim  that  fence-rails  are  of  neces- 
sity part  of  the  realty  unless  they  are  in  a 
fence,  and  even  in  such  case  they  may  re- 
main as  personalty,  if  such  be  the  agreement 
between  the  parties  interested  at  the  time  the 
fence  is  built.  Curtis  v.  Leasia  (Mich.)  44 
N.  W.  500.  The  contention  is  made,  that 
plaintiff  is  estopped  from  claiming  these  rails 
because,  following  the  description  by  metes 
and  bounds  of  the  premises  in  her  wan-anty 
deed  to  defendant,  the  deed  continues  as  fol- 
lows: "Being  the  same  premises  which  were 
assigned  by  said  commissioners  in  partition 
to  Mary  B.  Harris,  *  *  *  together  with 
all  and  singular  the  hereditaments  and  ap- 
purtenances thereunto  belonging,"  etc.  It  is 
argued  that  she  thereby  conveyed  these  rails, 
because  they  were  a  part  of  the  realty  when 
she  received  it  in  partition.  We  do  not  con- 
sider this  statement  in  the  deed  to  be,  or  to 
have  been  intended  to  be,  a  covenant  that  the 
premises  were  to  be  conveyed  to  defendant 
in  exactly  the  same  condition  as  to  fences, 
timber,  and  growing  crops  as  they  were  when 
she  received  them.  Such  a  construction 
would  be  absurd.  If  the  rails  must  pass  un- 
der the  warranty  because  of  this  clause,  then 
she  must  also  account,  under  such  warranty, 
to  the  defendant  for  all  the  timber  standing 
or  crops  growing  upon  the  premises,  when 
she  received  them  by  partition,  which  she 
may  have  removed  since  that  time  and  be- 
fore the  sale  to  defendant.  The  deed  can- 
not in  reason  be  so  construed.  Affirmed, 
with  costs.     The  other  justices  concurred. 


68 


WHAT  IS  REAL  PROPERTY. 


SMITH  V.  BLAKE. 

(55  N,  W.  978,  96  Mich.  542.) 
Supreme    Court   of   Michigan.    July   26.    1893. 

Appeal  from  circuit  court,  Cheboygan 
county,  in  chancery;    C.  J.  Pailthorp,  Judge. 

Action  by  Sarah  I.  Smith  against  Heniy 
A.  Blake  to  enjoin  the  removal  of  certain 
machinery  from  a  foundry  of  which  plain- 
tiff is  the  mortgagee  and  purchaser  at  fore- 
closure sale.  From  a  decree  for  plaintiff, 
defendant   appeals.    Affirmed. 

George  E.  Frost,  (Oscar  Adams,  of  coun- 
sel,) for  appellant.  Henry  W.  MacArthur, 
(George  W.  Bell,  of  counsel,)  for  appellee. 

HOOKER,  C.  J.  Complainant  is  the  owner 
of  a  mortgage  upon  certain  premises  in  the 
city  of  Cheboygan,  used  as  a  foundry,  ma- 
chine shop,  and  blacksmith  shop.  This  mort- 
gage was  made  December  14,  1882,  for 
$2,000,  witb  interest  at  8  per  cent.,  and  was 
foreclosed  by  advertisement,  the  premises 
being  bid  in  for  $2,402.61  by  the  complain- 
ant, who  (the  bill  states)  will  become  en- 
titled to  a  sheriff's  deed  upon  July  3,  1892, 
at  which  time  her  investment  will  amount 
to  $2,594.82.  The  bill  is  filed  to  resti-ain  the 
defendant  from  removing  certain  machinery 
upon  the  premises,  viz.:  One  iron  planer; 
one  upright  power  drill;  one  shaper;  three 
iron  lathes;  one  wood  lathe;  one  upright 
engine;  one  horizontal  boiler;  one  band  saw 
and  frame;  one  rip  saw  and  frame;  one 
foimdry  cupola  furnace  and  blower;  the 
belting,  shafting,  puUeys,  and  boxes  neces- 
sary for  the  running  and  management  of 
the  above  machinery. 

It  is  contended  that  the  biU  must  be  dis- 
missed under  the  demurrer  clause  in  the 
answer,  for  the  following  reasons,  viz.:  (1) 
The  bill  does  not  allege  tbat  the  articles 
named  are  fi:s:tui-es;  (2)  that  it  fails  to  show 
any  claim  of  the  property  in  controversy  by 
the  defendant,  or  threat  of  removal;  (3) 
that  no  injimction  can  properly  issue  upon 
information  and  belief.  Had  a  demurrer 
been  filed,  these  objections  would  have  been 
fatal.  But  the  law  does  not  favor  the  rais- 
ing of  technical  questions  after  hearing  upon 
the  merits,  and  will  not  permit  the  dismissal 


of  a  biU  upon  a  demurrer  clause  in  the 
answer  unless  the  bill  is  fatally  defective, 
and  past  remedv  by  amendment.  Barton  v. 
Gray,  48  Mich.  164,  12  N.  W.  Rep.  30;  Bauman 
v.  Bean,  57  Mich.  1,  23  N.  W.  Rep.  451;  Lamb 
V.  Jeffrey,  41  Mich.  720,  3  N.  W.  Rep.  204.  The 
bill  impliedly  states  that  these  articles  are  part 
of  the  realty.  When  we  read  this  sixth  clause 
in  the  light  of  the  whole  bill,  no  other  inference 
can  be  drawn.  The  failure  to  allege  threats 
could  have  been  the  subject  of  amendment  in 
the  court  below,  and  probably  would  have  been 
had  any  one  considered  it  necessary.  Threats 
were  not  even  proved,  but,  as  defendant's 
answer  claimed  this  property  to  be  person- 
alty, not  covered  by  the  mortgage,  and  this 
question  was  all  that  was  Utlgated,  we  may 
consider  the  intention  to  remove  admitted. 
This  brings  us  to  the  merits  of  the  case. 
The  proof  shows  that  all  of  these  articles 
were  placed  in  a  building  erected  many, 
years  ago  for  a  foundiy  and  machine  shop 
by  the  owner  of  both,  and,  while  some  of 
the  machines  were  not  fastened  to  the  soil 
or  building,  they  were  heavy,  and  it  was 
unnecessary.  AH  were  adapted  to  the  busi- 
ness for  which  the  building  was  erected. 
Furthermore,  the  preponderance  of  the 
proof  shows  that  the  parties  understood 
that  this  property  was  to  be  covered  by  the 
mortgage.  We  think  the  decision  of  the 
circuit  court  in  holding  that  the  mortgage 
covered  these  articles  was  in  accord  with  the 
Michigan  authorities. 

A  point  is  made  that  an  injunction  can- 
not properly  be  granted  when  the  bill  fails 
to  allege  the  requisite  facts  upon  the  oath 
of  the  complainant  That  is  true  where  the 
injunction  sought  is  preliminary,  but  we  sec 
no  reason  why  relief  by  injunction  cannot 
be  based  upon  proof  presented  upon  the 
hearing.  In  this  case,  while  the  injunction 
should  not  have  been  allowed,  it  was  per- 
mitted to  stand  tmtil  the  heailng,  and,  "suffi- 
cient equity  appearing,"  it  should  be  per- 
petuated. Clark  V.  Young,  2  B.  Mon.  57. 
The  record  may  be  remanded,  with  direc- 
tions that  complainant  be  allowed  to  amend 
her  bill,  whereupon  the  decree  may  stand 
affirmed.  Complainant  wQl  recover  costs  of 
both  courts.    The  other  justices  eoncxured- 


FIXTURES. 


69 


MICHIGAN   MUT.   LIFE   INS.   CO.   v. 
CRONK. 

(52  N.  W.  1035,  93  Mich.  49.) 

Supreme   Court  of   Michigan.     July  28,   1892. 

Error  to  circuit  court,  St.  Clair  county;  Ar- 
thur L.  Canfield,  Judge. 

Replevin  by  the  Michigan  Mutual  Life  In- 
surance Company  against  Edward  Cronk. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Affirmed 

Frank  Whipple,  for  appellant  Phillips  & 
Jenks,  for  appellee. 

MONTGOMERY,  J.  The  defendant,  on  the 
18th  day  of  June,  1887,  contracted  in  writ- 
ing to  purchase  of  one  William  L.  Jenks  the 
N.  W.  Vi  of  the  S.  W.  1/4  of  section  19,  town- 
ship 7  N.,  range  16  E.  The  contract  was  in 
the  usual  printed  form,  and  contained  a  cov- 
enant on  the  part  of  the  defendant  that  he 
would  not  commit,  or  suffer  any  other  person 
to  commit,  any  waste  or  damage  to  said  lands 
or  buildings,  except  for  firewood  or  other- 
wise, for  home  use,  while  clearing  off  the 
lands  in  the  ordinary  manner.  Immediately 
after  'entering  upon  the  lands  he  erected  a 
small  dwelling  house  thereon,  and  lived  in  it 
for  two  years.  He  then  made  default  in  his 
payments,  and  the  plaintiff,  to  whom  the 
contract  had  in  the  mean  time  been  assign- 
ed by  Jenks,  terminated  the  contract,  and  re- 
quired the  defendant  to  surrender  possession. 
The  house  was  a  one-story  frame  house,  20 
by  26,  and  suitable  for  the  purposes  of  a  dwell- 
ing house  to  be  used  upon  the  land  in  ques- 
tion. After  tne  removal  of  the  house  from 
the  premises,  it  was  placed  upon  a  40  across 


the  street,  and  plaintiff,  after  demand,  brought 
replevin.  The  circuit  judge  directed  a  verdict 
for  the  plaintiff,  and  the  defendant  appeals. 

Two  questions  only  are  presented  in  ap- 
pellant's brief.  It  is  first  claimed  that  re- 
plevin wUl  not  lie,  because  the  house  had 
become  a  fixture  upon  the  land  to  which  it 
was  moved,  and  was  therefore  real  estate; 
second,  that,  as  the  house  was  occupied  as  a 
homestead  by  the  defendant  and  his  family, 
the  wife  was  a  necessary  party.  We  thiuk 
that  when  this  house  was  elected  upon  the 
land  held  imder  contract  it  became  a  part 
of  the  realty,  and  as  such  the  property  of  the 
owner  of  the  land,  subject  only  to  the  rights 
of  the  purchaser  therein.  Kingsley  v.  Mc- 
Farland  (Me.)  19  Atl.  442;  Miltou  v.  Colby, 
5  Mete.  (Mass.)  78;  Iron  Co.  v.  Black,  70  Me. 
473;  Tyler,  Fixt.  78.  It  being  severed  from 
the  land,  it  became  personal  property,  and 
replevin  would  lie  imless  it  became  aflixed 
to  the  realty  by  the  tortious  act  of  the  de- 
fendant in  removing  it  and  placing  it  upon 
other  lands.  But  we  think  no  such  legal  ef- 
fect can  be  given  to  the  defendant's  wrong. 
The  house  was  moved  upon  land  of  a  third 
party.  There  was  no  privity  of  title  between 
the  ownership  of  the  house  and  the  owner- 
ship of  the  land  to  which  it  was  removed.  The 
cases  cited  by  defendant  of  Morrison  v.  Berry, 
42  Mich.  389,  4  N.  W.  731,  and  Wagar  v. 
Briscoe,  38  Mich.  587,  do  not  apply.  The 
house  remaining  personal  property  in  the 
wrongfifi  possession  of  defendant,  it  follows 
that  no  homestead  right,  which  consists  in  an 
interest  in  lands,  attached. 

The  judgment  is  affirmed,  with  costs.  The 
other  justices  concurred- 


70 


WHAT  IS  KEAL  PROPERTY. 


CRAIG  T.   LESLIE. 
(3  Wheat.  563-576.) 

Supreme  Court  of  the  United  States.    1818. 

Robert  Craig's  will  contained  the  follow- 
ing clause:  "I  give  and  bequeath  to  my 
brother,  Thomas  Craig,  of  Baith  parish,  Ayr- 
shire, Scotland,  all  the  proceeds  of  my  es- 
tate, both  real  and  personal,  which  I  have 
herein  directed  to  be  sold,  to  be  remitted  to 
him,  according  as  the  payments  are  made." 
Thomas  Craig  being  an  alien,  the  question 
was,  could  he  take  the  proceeds  of  this  land, 
which  had  been  devised  to  one  Leslie,  in 
ti-ust,  the  proceeds  from  the  sale  of  which 
were  to  be  paid  to  him? 


Mr.  Justice  WASHINGTON  delivered  the 
opinion  of  the  court.  The  incapacity  of  an 
alien  to  take,  and  to  hold  beneficially,  a  le- 
gal or  equitable  estate  in  real  property,  is 
not  disputed  by  the  counsel  for  the  plain- 
tiff; and  it  is  admitted  by  the  counsel  for 
the  state  of  Virginia,  that  this  incapacity 
does  not  extend  to  personal  estate.  The  on- 
ly inquiry,  then,  which  this  court  has  to 
make  is,  whether  the  above  clause  in  the 
will  of  Robert  Craig  is  to  be  construed,  un- 
der all  the  circumstances  of  this  case,  as  a 
bequest  to  Thomas  Craig  of  personal  prop- 
erty, or  as  a  devise  of  the  land  itself. 

Were  this  a  new  question,  it  would  seem 
extremely  difficult  to  raise  a  doubt  respect- 
ing it.  The  common  sense  of  mankind  wovild 
determine,  that  a  devise  of  money,  the  pro- 
ceeds of  land  directed  to  be  sold,  is  a  devise 
of  money,  notwithstanding  it  is  to  arise  out 
of  land;  and  that  a  devise  of  land,  which  a 
testator  by  his  will  directs  to  be  purchased, 
will  pass  an  interest  in  the  land  itself,  with- 
out regard  to  the  character  of  the  fund  out 
of  which  the  purchase  is  to  be  made. 

1  The  settled  doctrine  of  the  courts  of  equi- 
ty corresponds  with  this  obvious  consti-uc- 
tion  of  wills,  as  well  as  of  other  instruments, 
whereby  land  is  directed  to  be  turned  into 
money,  or  money  into  land,  for  the  benefit  of 
those  for  whose  use  the  conversion  is  in- 
tended to  be  made.  In  the  case  of  Fletcher 
V.  Ashburuer,  1  Brown,  Ch.  497,  the  master 
of  the  rolls  says,  that  "nothing  is  better  es- 
tablished than  this  principle,  that  money 
directed  to  be  employed  in  the  purchase  of 
land,  and  land  directed  to  be  sold  and  turn- 
ed into  money,  are  to  be  considered  as  that 
species  of  property  into  which  they  are  di- 
rected to  be  converted,  and  this,  in  what- 
ever manner  the  direction  is  given."  He 
adds,  "the  owner  of  the  fund,  or  the  con- 
tracting parties,  may  make  land  money  or 
money  land.  The  cases  establish  this  rule 
universally."  This  declaration  is  well  wai-- 
ranted  by  the  cases  to  which  the  master  of 

1  Equity   considers  land,  directed  to  be  sold 
(    and  converted  into  money,  as  money;   and  mon- 
ey directed  to  be  employed  in  the  purchase  of 
land,  as  land. 


the  rolls  refers,  as  well  as  by  many  others. 
See  Doughty  v.  Bull,  2  P.  Wms.  320;  Yates 
V.  Compton,  Id.  30S;  Trelawney  v.  Booth, 
2  Atk.  307. 

The  principle  upon  which  the  whole  of 
this  doctrine  is  founded  is,  that  a  court  of 
equity,  regarding  the  substance,  and  not  the 
mere  forms  and  circumstances  of  agreements 
and  other  instruments,  considers  things  di- 
rected or  agreed  to  be  done,  as  having  beea 
actually  performed,  where  nothing  has  in- 
tervened which  ought  to  prevent  a  perform- 
"^auce.  This  qualification  of  the  more  con- 
cise and  general  rule,  that  equity  considers 
that  to  be  done  which  is  agreed  to  be  done, 
will  comprehend  the  cases  which  come  un- 
der this  head  of  equity. 

-  Thus,  where  the  whole  beneficial  interest 
in  the  money  in  the  one  case,  or  in  the  laud 
in  the  other,  belongs  to  the  person  for  whose 
use  it  is  given,  a  court  of  equity  will  not 
compel  the  trustee  to  execute  the  trust 
against  the  wishes  of  the  cestui  que  trust, 
but  will  permit  him  to  take  the  money  or 
the  land,  if  he  elect  to  do  so  before  the  con- 
version has  actually  been  made;  and  .this 
election  he  may  make,  as  well  by  acts  or 
declarations,  clearly  indicating  a  determina- 
tion to  that  effect,  as  by  application  to  a 
court  of  equity.  It  is  this  election,  and  not 
the  mere  right  to  make  it,  which  changes 
the  character  of  the  estate  so  as  to  make  it 
real  or  personal,  at  the  will  of  the  party  en- 
titled to  the  beneficial  interest. 

If  this  election  be  not  made  in  time  to 
stamp  the  property  with  a  character  dif- 
ferent from  that  which  the  will  or  other  in- 
strument gives  it,  the  hitter  accompanies  it, 
with  all  its  legal  consequences,  into  the 
hands  of  those  entitled  to  it  in  that  char- 
acter. 3So  that  in  case  of  the  death  of  the 
cestui  que  trust,  without  having  determined 
his  election,  the  property  will  pass  to  his 
heirs  or  personal  representatives,  in  the  same 
manner  as  it  would  have  done  had  the  trust 
been  executed,  and  the  conversion  actually 
made  in  his  lifetime. 

In  the  case  of  Kirkman  v.  Milles,  13  Ves. 
338,  which  was  a  devise  of  real  estate  to 
trustees  upon  trust  to  sell,  and  the  moneys 
arising  as  well  as  the  rents  and  profits  till 
the  sale,  to  be  equally  divided  between  the 
testator's  three  daughters,  A.  B.  and  C  The 
estate  was,  upon  the  death  of  A.  B.  and  C, 
considered  and  treated  as  personal  property, 
notwithstanding  the  cestui  que  trusts,  after 
the  death  of  the  testator,  had  entered  upon, 


2  Where  the  whole  beneficial  interest  in  the 
land  in  one  case,  or  in  the  money  in  the  other, 
belongs  to  the  person  for  whose  use  it  is  given, 
a  court  of  equity  will  permit  the  cestui  que 
trust  to  take  the  money  or  land  at  his  election, 
if  he  elect  before  the  conversion  is  made. 

3  But  if  the  cestui  que  trust  die,  without  hay- 
ing determined  his  election,  the  property  will 
pass  to  his  heirs  or  personal  representatives,  in 
the  same  manner  as  it  would  have  done  if  the 
conversion  had  been  made,  and  the  trust  exe- 
cuted  in  his  lifetime. 


EQUITABLE  CONVERSION. 


71 


and  occupied  the  land  for  about  two  years 
prior  to  their  deaths;  but  no  steps  had  been 
taken  by  them,  or  by  the  trustees,  to  sell, 
nor  had  any  requisition  to  that  effect  been 
made  by  the  former  to  the  latter.  The  mas- 
ter of  the  rolls  was  of  opinion,  that  the  oc- 
cupation of  the  land  for  two  years  was  too 
short  to  presume  an  election.  He  adds: 
"The  opinion  of  Lord  Rosslyn,  that  proper- 
ty was  to  be  taken  as  it  happened  to  be  at 
the  death  of  the  party  from  whom  the  rep- 
resentative claims,  had  been  much  doubted 
by  Ix)rd  Eldon,  who  held  that  without  some 
act.  It  must  be  considered  as  being  in  the 
state  in  which  it  ought  to  be;  and  that  Lord 
Rosslyn's  rule  was  new,  and  not  according 
to  the  prior  cases." 

The  same  doctrine  is  laid  down  and  main- 
tained in  the  case  of  Edwards  v.  Countess 
of  Warwick,  2  P.  Wms.  171,  which  was  a 
covenant  on  marriage  to  invest  £10,000,  part 
of  the  lady's  fortune,  in  the  purchase  of  land 
in  fee,  to  be  settled  on  the  husband  for  life, 
remainder  to  his  first  and  every  other  son 
in  tail  male,  remainder  to  the  husband  in 
fee.  The  only  sou  of  this  marriage  having 
died  without  issue,  and  intestate,  and  the 
investment  of  the  money  not  having  been 
made  during  his  life,  the  chancellor  decided 
that  the  money  passed  to  the  heir  at  law; 
that  it  was  in  the  election  of  the  son  to 
have  made  this  money,  or  to  have  disposed 
of  it  as  such,  and  that,  therefore,  even  his 
parol  disposition  of  it  would  have  been  re- 
garded; but  that  something  to  determine 
the  election  must  be  done. 

4  This  doctrine,  so  well  established  by  the 
cases  which  have  been  referred  to,  and  by 
many  others  which  it  is  unnecessary  to  men- 
tion, seems  to  be  conclusive  upon  the  ques- 
tion which  this  court  is  called  upon  to  de- 
cide, and  would  render  any  farther  investi- 
gation of  it  useless,  were  it  not  for  the  case 
of  Roper  V.  Radcliffe,  Avhich  was  cited,  and 
mainly  relied  upon,  by  the  counsel  for  the 
state  of  Virginia. 

The  short  statement  of  that  case  is  as  fol- 
lows: John  Roper  conveyed  all  his  lands  to 
trustees  and  their  heirs,  in  trust,  to  sell  the 
same,  and  out  of  the  proceeds,  and  of  the 
rents  and  profits  till  sale,  to  pay  certain 
debts,  and  the  overplus  or  the  money  to  be 
paid  as  he,  the  said  John  Roper,  by  his  will 
or  otherwise,  should  appoint,  and  for  want 
of  such  appointment,  for  the  benefit  of  the 
said  John  Roper,  and  his  heirs.  By  his  will 
reciting  the  said  deed,  and  the  power  re- 
served to  him  in  the  surplus  of  the  said  real 
estate,  he  bequeathed  several  pecuniary  leg- 
acies, and  then  gave  the  residue  of  his 
real  and  personal  estate  to  William  Con- 
stable and  Thomas  Radcliffe,  and  two  others, 
and  to  their  heirs.  By  a  codicil  to  this  will, 
he  bequeathed  other  pecuniary  legacies;  and 
the  remainder,  whether  in  lands  or  personal 


4  The  case  of  Roper  v.  Radcliffe,  9  Mod.  1G7, 
examined. 


estate,  he  gave  to  the  said  W.  C.  and  T.  R. 

Upon  a  bill  filed  by  W.  C.  and  T.  R.  against 
the  heir  at  law  of  John  Roper,  and  the  oth- 
er trustees,  praying  to  have  the  trust  exe- 
cuted, and  the  residue  of  the  money  arising 
from  the  sale  of  the  lands  to  be  paid  over 
to  them;  the  heir  at  law  opposed  the  execu- 
tion of  the  trust,  and  claimed  the  laud  as 
a  resulting  trust,  upon  the  ground  of  the  in- 
capacity of  Constable  and  Radcliffe  to  take, 
they  being  papists.  The  decree  of  the  court 
of  chancery,  which  was  in  favour  of  the 
papists,  was,  upon  appeal  to  the  hou.se  of 
lords,  reversed,  and  the  title  of  the  heir  at 
law  sustained;  six  judges  against  five,  be- 
ing in  his  favour. 

Without  stating  at  large  the  opinion  upon 
which  the  reversal  took  place,  this  court  will 
pi'oceed,  1st.  To  examine  the  general  prin- 
ciples laid  down  in  that  opinion;  and  then, 
2d.  The  case  itself,  so  far  as  it  has  been 
pressed  upon  us  as  an  authority  to  rule  the 
question  before  the  court. 

In  performing  the  first  part  of  this  under- 
taking, it  will  not  be  necessary  to  question 
any  one  of  the  premises  laid  down  in  that 
opinion.  They  are,  1.  That  land  devised  to 
trustees,  to  sell  for  payment  of  debts  and 
legacies,  is  to  be  deemed  as  money.  This  is 
the  general  doctrine  established  by  all  the 
cases  referred  to  in  the  preceding  part  of 
this  opinion,  s  2.  That  the  heir  at  law  has 
a  resulting  tnist  in  such  land,  so  far  as  it  is 
of  value,  after  the  debts  and  legacies  are 
paid,  and  that  he  may  come  into  equity  and 
restrain  the  trustee  from  selling  more  than 
is  necessary  to  pay  the  debt  and  legacies;  or 
he  may  offer  to  pay  them  himself,  and  pray 
to  have  a  conveyance  of  the  part  of  the 
land  not  sold  in  the  first  case,  and  the  whole 
in  the  latter,  which  property  will,  in  either 
case,  be  land,  and  not  money.  This  right 
to  call  for  a  conveyance  is  very  correctly 
styled  a  privilege,  and  it  is  one  which  a 
court  of  equity  will  never  refuse,  unless 
there  are  strong  reasons  for  refusing  it.  The 
whole  of  this  doctrine  proceeds  u]X)n  a  prin- 
ciple which  is  incontrovertible,  that  where 
the  testator  merely  directs  the  real  estate  to 
be  converted  into  money,  for  the  purposes 
directed  in  his  will,  so  much  of  the  estate, 
or  the  money  arising  from  it,  as  is  not  ef- 
fectually disposed  of  by  the  will,  (whether 
it  arise  from  some  omission  or  defect  in  the 
will  itself,  or  from  any  subsequent  accident, 
which  prevents  the  devise  from  taking  ef- 
fect,) results  to  the  heir  at  law,  as  the  old 

6  Land,  devised  to  trustees,  to  sell  for  pay- 
ment of  debts  and  legacies,  is  to  be  deemed  as 
money. 

The  heir  at  law  has  a  residting  trust  in  such 
lands,  after  the  debts  and  legacies  are  paid,  and 
may  come  into  equity  and  restrain  the  trustee 
from  selling  more  than  sufficient  to  pay  them, 
or  may  offer  to  pay  them  himself,  and  pray  a 
conveyance  of  the  part  of  the  land  not  sold  in 
the  first  case,  and  the  whole  in  the  latter,  which 
property  in  either  case  will  be  land,  and  not 
money. 


72 


WHAT  IS  REAL  PROPERTY. 


use  not  disposed  of.  Such  was  the  case  of 
Ciuse  V.  Barley,  3  P.  Wins.  20,  where  the 
testator  having  two  sons,  A.  and  B.,  and 
three  daughters,  devised  his  lands  to  be  sold 
to  pay  his  debts,  &c.,  and  as  to  the  moneys 
arising  by  the  sale,  after  debts  paid,  gave 
£200  to  A.  the  eldest  son,  at  the  age  of  21, 
and  the  residue  to  his  four  younger  children. 
A.  died  before  the  age  of  21,  in  consequence 
of  which  the  bequest  to  him  failed  to  take 
effect.  Tlie  court  decided  that  the  £200 
should  be  considered  as  land  to  descend  to 
the  heir  at  law  of  the  testator,  because  it 
was  in  effect  the  same  as  if  so  much  land 
as  was  of  the  value  of  £200  was  not  directed 
to  be  sold,  but  was  suffered  to  descend.  The 
ease  of  Ackroyd  v.  Smithson,  1  Brown,  Ch. 
503,  is  one  of  the  same  kind,  and  estab- 
lishes the  same  principle.  So,  likewise,  a 
money  provision  xmder  a  marriage  contract, 
to  arise  out  of  land,  which  did  not  take  ef- 
fect, on  account  of  the  death  of  the  party  for 
whose  benefit  it  was  intended,  before  the 
time  prescribed,  resulted  as  money  to  the 
grantor,  so  as  to  pass  under  a  residuary 
clause  in  his  will.  Hewitt  v.  Wright,  1 
Brown,  Ch.  Cas.  86. 

6  But    even    in   cases   of    resulting    trusts, 
for  the  benefit  of  the  heir  at  law,  it  is  set- 
tled  that   if  the   intent  of   the   testator   ap- 
pears to  have  been  to  stamp  upon  the  pro- 
ceeds of  the  land  described  to  be  sold,  the 
quality  of  personalty,  not  only  to  subserve 
the   particular  purposes  of  the  will,   but  to 
all  intents,  the  claim  of  the  heir  at  law  to 
a  resulting  trust  is  defeated,  and  the  estate 
is  considered  to  be  personal.    This  was  de- 
cided in  the  case  of  Yates  v.  Compton,  2  P. 
Wms.  308,  in  which  the  chancellor  says,  that 
the  intention  of  the  will  was  to  give  away 
all  from  the  heir,  and  to  turn  the  land  into 
personal    estate,    and   that   that    was   to    be 
taken  as  it  was  at  the  testator's  death,  and 
ought  not  to  be  altered  by  any  subsequent 
accident,  and  decreed  the  heir  to  join  in  the 
sale  of  the  land,  and  the  money  arising  there- 
from to  be  paid  over  as  personal  estate  to 
the  representatives  of  the  annuitant,  and  to 
those  of   the   residuary  legatee.    In  the  case 
of  Fletcher  v.  Ashburner,  before  referred  to, 
the  suit  was  brought  by  the  heir  at  law  of 
the  testator,  against  the  personal  representa- 
tives  and    the   trustees   claiming  the   estate 
upon  the  ground   of  a   resulting  trust.    But 
the  court  decreed  the  property,  as  money,  to 
the  personal  representatives  of  him  to  whom 
the  beneficial  interest  in  the  money  was  be- 
queathed,  and   the   master   of   the   rolls   ob- 
serves, that  the  case  of  Emblyn  v.  Freeman, 
and  Cruse  v.  Barley,  are  those   where  real 
estate  being  directed  to  be  sold,  some  part 

6  But  if  the  intent  of  the  testator  appears  to 
have  boon  to  stamp  upon  the  proceeds  of  the 
land  directed  to  be  sold,  the  quality  of  person- 
alty, not  only  for  the  particular  purposes  of  the 
will,  but  to  all  intents,  the  claim  of  the  heir  at 
law  to  a  resulting  trust  is  defeated,  and  the  es- 
tate is  considered  to  be  personal. 


of  the  disposition  has  failed,  and  the  thing 
devised  has  not  accrued  to  the  representa- 
tive, or  devisee,  by  which  something  has  re- 
sulted to  the  heir  at  law. 

It  is  evident,  therefore,  from  a  view  of  the 
above  cases,  that  the  title  of  the  heir  to  a 
resulting  trust  can  never  arise,  except  when 
something  is  left  undisposed  of,  either  by 
some  defect  in  the  will,  or  by  some  subse- 
quent lapse,  which  prevents  the  devise  from 
taking  effect;  and  not  even  then,  if  it  ap- 
pears that  the  intention  of  the  testator  was 
to  change  the  nature  of  the  estate  from  land 
to  money,  absolutely  and  entirely,  and  not 
merely  to  seiwe  the  purposes  of  the  will. 
But  the  ground  upon  which  the  title  of  the 
heir  rests  is,  that  whatever  is  not  disposed 
remains  to  him,  and  partakes  of  the  old  use, 
as  if  it  had  not  been  directed  to  be  sold. 

The  third  proposition  laid  down  in  the 
case  of  Roper  v.  Radcliffe,  9  Mod.  107,  is, 
that  equity  will  extend  the  same  privilege 
to  the  residuaiy  legatee  which  is  allowed 
to  the  heir,  to  pay  the  debts  and  legacies, 
and  call  for  a  conveyance  of  the  real  estate, 
or  to  restrain  the  trustees  froin  selling  more 
than  is  necessary  to  pay  the  debts  and  lega- 
cies. 

7  This  has,  in  effect,  been  admitted  in 
the  preceding  pai-t  of  this  opinion;  because, 
if  the  cestui  que  trust  of  the  whole  benefi- 
cial interest  in  the  money  to  arise  from  the 
sale  of  the  land,  may  claim  this  privilege, 
it  follows,  necessarily,  that  the  residuaiy 
legatee  may,  because  he  is,  in  eft'ect,  the 
beneficial  owner  of  the  whole,  charged  with 
the  debts  and  legacies,  from  which  he  will 
be  permitted  to  discharge  it,  by  paying  the 
debts  and  legacies,  or  may  claim  so  much  of 
the  real  estate  as  may  not  be  necessary  for 
that  purpose. 

8  But  the  court  cannot  accede  to  the  con- 
clusion, which,  in  Roper  v.  Radcliffe,  is  de- 
duced from  the  establishment  of  the  above 
principles.  That  conclusion  is,  that  in  re- 
spect to  the  residuary  legatee,  such  a  devise 
shall  be  deemed  as  land  in  equity,  though  in 
respect  to  the  creditoi-s  and  specific  legatees 
it  is  deemed  as  money.  It  is  admitted,  with 
this  qualification,  that  if  the  residuary  lega- 
tee thinks  proper  to  avail  himself  of  the 
privilege  of  taking  it  as  land,  by  making  an 
election  in  his  life  time,  the  property  will 
then  assume  the  character  of  land.  But  if 
he  does  not  make  this  election,  the  property 
retains  the  character  of  personalty  to  every 
intent  and  purpose.    The  cases  before  cited 

7  Equity  will  extend  the  same  privilege  to 
the  residuary  legatee  which  is  allowed  to  the 
heir,  to  pay  the  debts  and  legacies,  and  call  f9r 
a  conveyance  of  the  real  estate,  or  to  restrain 
the  trustees  from  selling  more  than  is  necessary 
to  pay  the  debts  and  legacies. 

8  The  conclusion — which,  in  Roper  v.  Rad- 
cliffe, is  deduced  from  the  above  principles,  that 
in  respect  to  the  residuary  legatee  such  a  devise 
shall  be  considered  as  land  in  equity,  though  m 
respect  to  the  creditors  and  specific  legatees,  it 
is  deemed  as  money— denied. 


EQUITABLE  CONVERSION. 


73 


«eem  to  the  court  to  be  conclusive  upon  this 
point;  and  none  were  referred  to,  or  have 
come  under  the  view  of  the  court,  which 
sanction  the  conclusion  made  in  the  unquali- 
fied terms  used  in  the  case  of  Roper  v.  Rad- 
cJiife. 

As  to  the  idea  that  the  character  of  the  es- 
tate is  affected  by  this  right  of  election, 
whether  the  right  be  claimed  or  not,  it  ap- 
pears to  be  as  repugnant  to  reason,  as  we 
think  it  has  been  shown  to  be,  to  principle 
and  authorities.  Before  any  thing  can  be 
made  of  the  proposition,  it  should  be  shown 
that  this  right  of  privilege  of  election  is  so 
indissolubly  united  Avith  the  devise,  as  to 
constitute  a  part  of  it,  and  that  it  may  be 
exercised  in  all  cases,  and  under  all  circum- 
stances. This  was,  indeed,  contended  for 
with  great  ingenuity  and  abilities  by  the 
counsel  for  the  state  of  Virginia,  but  it  was 
not  proved  to  the  satisfaction  of  the  court. 

It  certainly  is  not  true,  that  equity  will 
extend  this  privilege  in  all  cases  to  the  cestui 
que  trust.  It  will  be  refused  if  he  be  an  in- 
fant. In  the  case  of  Seeley  v.  Jago,  1  P. 
Wms.  389,  where  money  was  devised  to  be 
laid  out  in  land  in  fee,  to  be  settled  on  A. 
B.  and  C,  and  their  heirs,  equally  to  be  di- 
vided: On  the  death  A.,  his  infant  heir, 
together  with  B.  and  C,  filed  their  bill, 
claiming  to  have  the  money,  which  was  de- 
creed accordingly  as  to  B.  and  C;  but  the 
share  of  the  infant  was  ordered  to  be  put 
out  for  his  benefit,  and  the  reason  assigned 
was,  that  he  was  incapable  of  making  an 
election,  and  that  such  election,  if  permitted, 
would,  in  case  of  his  death,  be  prejudicial 
to  his  heir. 

In  the  case  of  Foone  v.  Blount,  Cowp. 
4()7,  Lord  Mansfield,  who  is  compelled  to 
acknowledge  the  authority  of  Roper  v.  Rad- 
cliffe  in  parallel  cases,  combats  the  reasoning 
of  Chief  Justice  Parker  upon  this  doctrine 
of  election,  with  irresistible  force.  He  sug- 
gests, as  the  true  answer  to  it,  that  though 
in  a  variety  of  cases  this  right  exists,  yet  it 
was  inapplicable  to  the  case  of  a  person 
who  was  disabled  by  law  from  taking  laud, 
and  that  therefore  a  court  of  equity  would, 
in  such  a  case,  decree  that  he  should  take 
the  property  as  money. 

This  case  of  Walker  v.  Denne,  2  Ves.  Jr 
170,  seems  to  apply  with  great  force  to  this 
part  of  our  subject.  The  testator  directed 
money  to  be  laid  out  in  lands,  tenements,  and 
hereditaments,  or  on  long  terms,  with  limita- 
tions applicable  to  real  estate.  The  money 
not  having  been  laid  out,  the  crown,  on  fail- 
ure of  heirs,  claimed  the  money  as  land.  It 
was  decided  that  the  crown  had  no  equity 
against  the  next  of  kin  to  have  the  money 
laid  out  in  real  estate  in  order  to  claim  it  by 
escheat.  It  was  added  that  the  devisees,  on 
becoming  absolutely  entitled,  have  the  op- 
tion given  by  the  will;  and  a  deed  of  ap- 
pointment by  one  of  the  cestui  que  trusts, 
though  a  feme  covert,  was  held  a  sufficient  in- 
•dication  of  her  intention  that  it  should  con- 


tinue personal  against  her  heir  claiming  it  as 
ineffectually  disposed  of  for  want  of  her  ex- 
amination. This  case  is  peculiarly  strong, 
from  the  circumstance,  that  the  election  is 
embodied  in  the  devise  itself;  but  this  was 
not  enough,  because  the  crown  had  no  equity 
to  force  an  election  to  be  made  for  the  ijur- 
pose  of  producing  an  escheat. 

Equity  would  surely  proceed  contrary  to 
its  regular  course,  and  the  principles  which 
universally  govern  it,  to  allow  the  right  of 
election  where  it  is  desired,  and  can  be  law- 
fully made,  and  yet  refuse  to  decree  the 
money  upon  the  application  of  the  alien, 
upon  no  other  reason,  but  because,  by  law, 
he  is  incapable  to  hold  the  land:  In  short,  to 
consider  him  in  the  same  situation  as  if  he 
had  made  an  election,  which  would  have 
been  refused  had  he  asked  for  a  conveyance. 
The  more  just  and  correct  rule  would  seem 
to  be,  that  where  the  cestui  que  trust  is  in- 
capable to  take  or  to  hold  the  land  beneficial- 
1}%  the  right  of  election  does  not  exist,  and 
consequently,  that  the  property  is  to  be  con- 
sidered as  being  of  that  species  into  which 
it  is  directed  to  be  converted. 

Having  made  these  observations  upon  the 
principles  laid  down  in  the  case  of  Roper  v. 
Radcliffe,  and  upon  the  arguments  urged  at 
the  bar  in  support  of  them,  very  few  words 
will  suffice  to  show  that,  as  an  authority,  it  is 
inapplicable  to  this  case. 

9  The  incapacities  of  a  papist  under  the 
English  statute  of  11  &  12  Wm.  III.,  c.  4,  and 
of  an  alien  at  common  law,  are  extremely 
dissimilar.  The  former  is  incapable  to  take 
by  purchase,  auy  lands,  or  profits  out  of 
lands;  and  all  estates,  terms,  and  any  other 
interests  or  profits  whatsoever  out  of  lands, 
to  be  made,  suffered,  or  done,  to,  or  for  the 
use  of  such  person,  or  upon  any  trust  for 
him,  or  to,  or  for  the  benefit,  or  relief  of  any 
such  person,  are  declared  by  the  statute  to 
be  utterly  void. 

Thus,  it  appears  that  he  cannot  even  take. 
His  incapacity  is  not  confined  to  land,  but  to 
any  profit,  interest,  benefit,  or  relief,  in  or 
out  of  it.  He  is  not  only  disabled  from  tak- 
ing or  having  the  benefit  of  any  such  inter- 
est, but  the  will  or  deed  itself,  which  at- 
tempts to  pass  it,  is  void.  In  Roper  v.  Rad- 
cliffe, it  was  strongly  insisted,  that  the  money 
given  to  the  papist,  which  was  to  be  the  pro- 
ceeds of  the  laud,  was  a  profit  or  interest 
out  of  the  land.  If  this  be  so,  (and  it  is  not 
material  in  this  case  to  affirm  or  deny  that 
position,)  then  the  will  of  John  Roper  in 
relation  to  the  be'quest  to  the  two  papists, 
was  void  under  the  statute;  and  if  so,  the 
right  of  the  heir  at  law  of  the  testator,  to 
the  residue,  as  a  resulting  ti'ust,  was  incon- 
testable. The  cases  above  cited  have  fully 
established  that  principle.  In  that  case,  too, 
the  rents  and  profits,  till  the  sale,  would  have 
belonged  to  the  papists,  if  they  were  capable 

9  Tho  ease  of  Roper  v.  Radcliffe  distinguished 
from  the  present  case. 


74 


WHAT  IS  REAL  PROPERTY. 


of  taking,  which  brought  the  case  still  more 
strongly  within  the  statute;  and  this  was 
much  relied  on,  not  only  in  reasoning  upon 
the  words,  but  the  policy  of  the  statute. 

10  Now,  what  is  the  situation  of  an  alien? 
He  cannot  only  take  an  interest  in  laud,  but 
a  freehold  interest  in  the  land  itself,  and 
may  hold  it  against  all  the  world  but  the 
king,  and  even  against  him  until  office  found, 
and  he  is  not  accountable  for  the  rents  and 
profits  previously  received,  n  In  this  case 
the  will  being  valid,  and  the  alien  capable 
of  taking  under  it,  there  can  be  no  resulting 
trust  to  the  heir,  and  the  claim  of  the  state 
is  founded  solely  upon  a  supposed  equity,  to 
have  the  land  by  escheat  as  if  the  alien  had, 
or  could  upon  the  principles  of  a  court  of 
equity,  have  elected  to  take  the  land  instead 
of  the  money.  The  points  of  difference  be- 
tween the  two  cases  are  so  striking  that  it 
would  be  a  waste  of  time  to  notice  them  in 
detail. 

It  may  be  further  observed,  that  the  case 
of  Roper  v.  Radcliffe  has  never,  in  England, 
been  applied  to  the  case  of  aliens;  that  its 
authority  has  been  submitted  to  with  re- 
luctance, and  is  strictly  confined  in  its  ap- 
plication to  cases  precisely  parallel  to  it. 
Lord  Mansfield  in  the  case  of  Foone  v. 
BloTint,  speaks  of  it  with  marked  disappro- 
bation; and  we  know,  that  had  Lord  Trevor 

10  An  alien  may  take,  by  purchase,  a  freehold, 
or  other  interest  in  land,  and  may  hold  it 
against  all  the  world  except  the  king;  and  even 
against  him  until  office  found;  and  is  not  ac- 
countable for  the  rents  and  profits  previously 
received. 

11  Vide  3  Wheat.  12.  Jackson  ex  dem.  State 
of  New  York  v.  Clarke,  note  c. 


been  present,  and  declared  the  opinion  he 
had  before  entertained,  the  judges  would 
have  been  equally  divided. 

The  case  of  the  Attorney  General  and  Lord 
Weymouth,  Amb.  20,  was  also  pressed  upon 
the  court,  as  strongly  supporting  that  of 
Roper  v.  Radcliffe,  and  as  bearing  upon  the 
present  case. 

The  first  of  these  propositions  might  be 
admitted;  although  it  is  certain  that  the 
mortmain  act,  upon  which  that  case  was 
decided,  is  even  stronger  in  its  expression 
than  the  statute  against  papists,  and  the 
chancellor  so  considers  it;  for  he  says, 
whether  the  sui-plus  be  considered  as  money 
or  land,  it  is  just  the  same  thing,  the  statute 
making  void  all  charges  and  encumbrances 
on  land,  for  the  benefit  of  a  charity. 

But  if  this  case  were,  in  all  respects,  the 
same  as  Roper  v.  Radcliffe,  the  observations 
which  have  been  made  upon  the  latter 
would  all  apply  to  it.  It  may  be  remarked, 
however,  that  in  this  case,  the  chancellor 
avoids  expressing  any  opinion  upon  the  ques- 
tion, whether  the  money  to  arise  from  the 
sale  of  the  land,  was  to  be  taken  as  personal- 
ty or  land;  and,  although  he  mentions  the 
case  of  Roper  v.  Radcliffe,  he  adds,  that  he 
doe.s  not  depend  upon  it,  as  it  is  immaterial 
wliether  the  surplus  was  to  be  considered  as 
land  or  money  under  the  mortmain  act. 

Upon  the  whole  we  are  unanimously  of 
opinion,  that  the  legacy  given  to  Thomas 
Craig,  in  the  will  of  Robert  Craig,  is  to  be 
considered  as  a  bequest  of  personal  estate,^ 
which  he  is  capable  of  taking  for  his  owa 
benefit. 

Cei-tificate  accordingly. 


EQUITABLE  CONVERSION. 


BOLTON  et  al.  v.  MYERS  et  al. 

(40  N.  E.  737,  14<;  N.  Y.  257.) 

Court  of  Appeals  of  New  York.      May  21,  1895. 

Appeal  from  supreme  court,  general  term, 
Second  department. 

Accounting  by  lleury  B.  Bolton  and  Thom- 
as Bolton,  as  executors  of  the  will  of  Ann 
Bolton,  deceased.  From  a  judgment  of  the 
general  term  (31  N.  Y.  Supp.  588)  reversing  a 
judgment  of  the  suri'ogate  denying  the  exec- 
utors the  right  to  reimburse  themselves,  out 
of  the  proceeds  of  a  sale  of  the  land,  for  debts 
of  the  testator  paid  by  them  out  of  their  own 
funds,  Sarah  L.  Myers  and  others  appeal. 
AfTirmed. 


James    R.    Marvin,    for    appellants. 
Thain,  for  respondents. 


Alex. 


O'BRIEN,  J.  In  this  proceeding  it  was 
held  by  the  learned  surrogate  that  the  execu- 
tors were  not  entitled  to  reimburse  them- 
selves out  of  the  proceeds  of  the  sale  of  real 
estate  in  their  hands  for  the  amount  paid  by 
them  in  discharge  of  the  testator's  debts  over 
and  above  the  sum  realized  for  that  purpose 
from  the  personal  estate.  The  testator  died 
September  27,  1882,  and  letters  were  grant- 
ed to  the  executors  in  November  following. 
In  November,  1892,  the  executors  accounted, 
and  by  the  decree  then  entered  it  was  ad- 
judged that  the  estate  was  indebted  to  the 
executors  on  account  of  debts  of  the  testator 
paid  by  them  in  default  of  personal  assets  in 
the  sum  of  about  .$4,000.  Subsequently  there 
came  to  the  hands  of  the  executors  a  large 
sum  received  from  the  sale  of  certain  real  es- 
tate of  the  testator,  and  this  accounting  was 
in  regard  to  that  fund,  and  the  executors 
claim  that  they  should  be  allowed  to  retain 
sufficient  of  it  to  pay  the  debt  due  to  them 
from  the  estate.  The  provisions  of  the  will 
are  as  follows:  After  paying  debts,  then  a 
bequest  of  certain  household  furniture  to  her 
daughter.  Then  a  devise  to  her  son  of  the 
house  in  which  he  lived.  The  executors  were 
then  directed  to  invest  $1,500,  the  interest  up- 
on which  was  to  be  paid  to  a  church,  and  to 
expend  a  reasonable  sum  in  erecting  a  monu- 
ment and  putting  the  family  cemetery  in  or- 
der.    Then  follows  the  power  of  sale  in  the 


following  terms:  "And  I  also  give  power  and 
authority  to  my  executors  to  sell  any  and  all 
of  my  real  estate,  either  at  public  or  private 
sale,  whenever,  in  their  judgment,  they  may 
deem  for  the  best  interest  of  my  estate,  and 
to  give  good  and  sufficient  deed  or  deeds  of 
conveyance  for  the  same."  The  residue  of 
the  estate  was  then  bequeathed  to  her  chil- 
dren. In  the  courts  below,  the  right  of  the 
executors  to  enforce  their  claim  in  this  pro- 
ceeding is  made  to  depend  upon  the  scope  and 
character  of  this  power.  It  has  been  assum- 
ed in  both  courts  that,  unless  this  can  be  re- 
garded as  a  power  to  the  executors  to  sell 
real  estate  for  the  payment  of  debts,  then 
the  proceeds  of  the  sale  must  still  be  regard- 
ed as  real  estate,  and  distributed  to  the  dev- 
isees or  persons  who  take  the  real  estate  un- 
der the  will.  The  learned  general  term,  re- 
versing the  surrogate,  was  of  the  opinion  that 
it  should  be  treated  as  a  power  of  sale  for  the 
purpose  of  paying  debts,  upon  the  doctrine  of 
the  Gantert  Case,  136  N.  Y.  109,  32  N.  E. 
551.  If  it  was  necessary  to  establish  that 
proposition,  there  would  be  great  difficulty 
in  sustaining  the  jud;nuent.  But  we  think 
it  is  not  material  to  determine  the  scope  and 
the  character  of  the  power.  It  w^as  certainly 
a  general  power,  and  conferred  authority  up- 
on the  executors  to  convey  the  land  and  re- 
ceive the  proceeds.  That  power  has  been  ac- 
tually executed.  They  have  conveyed  the 
land,  have  received  the  purchase  price,  and 
the  same  is  in  their  hands.  There  is  no  oth- 
er way  in  which  creditors  can  now  reach  the 
land  except  by  proceedings  for  an  account- 
ing. The  realty  has  in  fact  been  converted 
into  personalty,  and  is  in  the  hands  of  the 
executors  for  all  purposes  of  administration. 
Before  distributing  this  fund  to  the  residuary 
devisees,  they  may  pay  the  balance  of  the  tes- 
tator's debts,  and,  what  is  the  same  thing, 
reimburse  themselves  for  the  debts  they  have 
paid  in  excess  of  the  personal  estate  that 
came  to  their  hands.  Erwin  v.  Loper,  43  N. 
Y.  521;  Hood  v.  Hood,  85  N.  Y.  5G1;  Glacius 
V.  Fogel,  88  N.  Y.  434;  In  re  Powers.  124  N. 
Y.  361,  26  N.  E.  940;  In  re  Gantert,  136  N. 
Y.  109,  32  N.  E.  551;  Cahill  v.  Russell,  140  N. 
Y.  402,  35  N.  E.  664.  In  this  view  we  think 
the  judgment  of  the  general  term  was  right, 
and  should  be  affirmed,  with  costs.  All  con- 
cur.    Judgment  affirmed. 


76 


ESTATES  IN  REAL  PROPERTY. 


ADAMS  V.  ROSS.i 

(30  N.  J.  Law,  505.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
June  Term,  1860. 

Error  to  supreme  court. 

A.  O.  Zabriskie,  for  plaintiff  in  error.  J.  P. 
Bradley,  for  defendant  in  error. 

WHELPLEY,  J.  This  writ  of  error  brings 
up  for  review  the  judgment  of  the  supreme 
court,  giving  a  construction  to  a  deed,  dated 
the  9th  of  September,  1854,  between  Anna  V. 
Traphagen,  of  the  first  part,  and  Catharine  Ann 
V.  B.  Adams,  wife  of  Alonzo  Whitney  Adams, 
of  the  second  part,  by  which  the  grantor,  in 
consideration  of  natural  love  and  affection  and 
of  one  dollar,  conveyed  to  the  grantee  the  prem- 
ises in  the  deed  described.  The  operative  words 
are  "grant,  bargain,  sell,  alien,  remise,  release, 
convey,  and  confirm  unto  the  said  party  of  the 
second  part,  for  and  during  her  natural  life,  and 
at  her  death  to  her  children  which  may  be  be- 
gotten of  her  present  husband;  to  have  and  to 
hold  the  above  described  premises  unto  the  said 
party  of  the  second  part  for  and  during  her  nat- 
ural life,  and  at  her  death  to  her  children  which 
may  be  begotten  of  her  present  husband,  Alon- 
zo W.  Adams." 

The  deed  contains  covenants  of  seizin,  for  qui- 
et enjoyment,  against  encumbrances,  for  fur- 
ther assurance  and  of  warranty. 

These  covenants  are  made  by  the  grantor  for 
herself  and  her  heirs  with  the  party  of  the  sec- 
ond part,  her  heirs  and  assigns. 

Mrs.  Adams,  at  the  date  of  conveyance  to 
her,  was  a  minor.  On  the  12th  October,  1855, 
she,  with  her  husband,  executed  a  mortgage  to 
secure  the  payment  of  ?6000,  in  one  year  from 
date,  upon  the  premises  conveyed  to  her.  She 
was  then  nineteen.  The  mortgage  was  to  Ross, 
the  applicant  in  the  supreme  court. 

The  Erie  Railway  Company,  under  the  pro- 
visions of  an  act  of  the  legislature,  took  a 
part  of  the  land  in  question,  and  hold  it  in  fee 
simple.  The  value  of  the  land  taken  has  been 
ascertained  at  ^3061;  that  is  now  in  the  su- 
preme court,  to  be  awarded  to  the  parties  enti- 
tled to  it,  and  who  they  are  must  depend  upon 
the  true  construction  of  the  deed. 

What,  then,  are  the  rights  of  Mrs.  Adams, 
her  husband  and  children,  one  having  been  born 
of  the  marriage  since  the  conveyance;  and 
what,  if  any,  are  the  rights  of  Ross,  the  mort- 
gagee, to  the  money  in  court. 

The  supreme  court  held,  that  the  estate  grant- 
ed by  the  deed  was  an  estate  in  fee  tail  special 
m  Catharine  Adams  and  the  heirs  of  her  body 
by  her  present  husband;  that  her  husband  was 
entitled  to  curtesy;  that  the  mortgage  to  Ross 
on  the  interest  of  Mrs.  Adams  was  void  as  to 
her,  but  was  a  lien  upon  the  estate  of  her  hus- 
band, in  case  he  survived  her. 

This  decision  was  reached  by  interpreting  the 
word  "children,"  in  the  deed,  as  equivalent  to 

1  Order  of  the  court  omitted. 


"heirs,"  calling  in  the  covenants  in  aid  of  that 
interpretation,  as  throwing  light  upon  what  the 
court  called  the  intention  of  the  grantor. 

The  supreme  court  was  right  in  holding  the 
first  estate  conveyed  to  Mrs.  Adams,  not  a  fee 
simple;  the  express  limitation  of  the  estate  to  her 
during  life,  and  after  her  death  to  her  children, 
forbade  any  other  conclusion.  The  covenant, 
warranting  the  land  to  her  and  her  heirs  gen- 
eral, cannot  enlarge  the  estate,  nor  pass  by  es- 
toppel a  greater  estate  than  that  expressly  con- 
veyed. A  party  cannot  be  estopped  by  a  deed, 
or  the  covenants  contained  in  it,  from  setting 
up  that  a  fee  simple  did  not  pass,  when  the 
deed  expressly  shows  on  its  face  exactly  what 
estate  did  pass,  and  that  it  was  less  than  a  fee. 
Rawle,  Gov.  420;  Blanchard  v.  Brook,  12  Pick. 
67;    2  Co.  Litt.  385b. 

Lord  Coke  expressly  says:  But  a  warranty 
of  itself  cannot  enlarge  an  estate;  as  if  the 
lessor  by  deed  release  to  his  lessee  for  life,  and 
warrant  the  land  to  the  lessee  and  his  heirs; 
yet  doth  not  this  enlarge  his  estate. 

Justice  Vredenburgh,  in  his  opinion,  admits 
this  to  be  law.  He  says,  although  the  cove- 
nants cannot  be  used  to  enlarge  the  estate,  yet 
they  may  be  used  to  show  in  what  sense  the 
words  in  the  conveying  part  of  the  deed  were 
used.  What  is  that  but  enlarging  what  would 
otherwise  be  their  meaning?  If  without  ex- 
planation they  are  insufficient  to  pass  the  es- 
tate, does  not  the  explanation  enlarge  their  op- 
eration ? 

The  learned  judge,  in  his  elaborate  opinion, 
says:  From  these  covenants,  it  is  demonstrat- 
ed that,  by  the  terms  "children  by  her  present 
husband,"  the  grantor  intended  the  heirs  of  her 
body  by  her  present  husband.  It  follows,  from 
this  argument,  that  although  the  conveying  part 
of  the  deed  may  not  contain  sufficient  to  convey 
the  estate  as  a  fee  simple,  for  example,  yet 
that  if  the  covenants  show  an  intent  to  pass  a 
fee  simple,  it  will  pass. 

The  argument  is,  that  the  words  of  convey- 
ance and  covenant  must  be  construed  together. 
If  the  covenants  look  to  the  larger  estate,  that 
will  pass  upon  the  intent  indicated.  Children 
are  said  to  be  equivalent  to  heirs,  because  she 
warranted  to  her  heirs;  and  the  heirs  are  said 
to  be  not  heirs  general,  because  she  called  them 
children. 

The  inconsistency  between  the  conveyance  and 
covenant  shows  mistake  in  the  one  or  the  oth- 
er. The  safest  rule  of  construction  is  that  pro- 
pounded by  the  supreme  court;  that  the  quan- 
tity of  the  estate  conveyed  must  depend  upon 
the  operative  words  of  conveyance,  and  not  up- 
on the  covenants  defending  the  quantity  of  es- 
tate conveyed. 

Starting  with  that  premise,  it  seems  difficult, 
nay  impossible,  to  reach  the  conclusion,  that 
the  covenants  are  to  be  looked  to  in  the  inter- 
pretation of  the  conveyance,  as  such. 

The  covenants  only  attach  to  the  estate  grant- 
ed, or  purporting  to  be  granted.  If  a  life  es- 
tate only  be  expressly  conveyed,  the  covenantor 
warrants  nothing  more.  The  conveyance  is  the 
principal,    the  covenant   the   incident.      If   they 


FEE  SIMPLE  AND  FEE  TAIL. 


77 


do  not  expressly  enlarge  the  estate  passed  by 
the  operative  words  of  the  deed,  I  cannot  per- 
ceive upon  what  sound  principle  of  construction 
they  can  have  that  effect  indirectly  by  throw- 
ing light  on  the  intention  of  the  grantor.  In 
the  construction  of  a  deed  of  conveyance  the 
question  is,  not  what  estate  did  the  grantor  in- 
tend to  pass,  but  what  did  he  pass  by  apt  and 
proper  words.  If  he  has  failed  to  use  the  prop- 
er words,  no  expression  of  intent,  no  amount  of 
recital,  showing  the  intention,  will  supply  the 
omission,  although  it  may  preserve  the  rights  of 
the  party  under  the  covenant  for  further  assur- 
ance or  in  equity  upon  a  bill  to  reform  the  deed. 

The  object  of  the  covenants  of  a  deed  is  to 
defend  the  estate  passed,  not  to  enlarge  or 
/  narrow  it.  To  adopt,  as  a  settled  rule  of  in- 
terpretation, that  deeds  are  to  be  construed 
like  wills,  according  to  the  presumed  intent  of 
the  parties  making  them,  to  be  deduced  from 
an  examination  of  the  whole  instrument,  would 
be  dangerous,  and,  in  my  judgment,  in  the 
last  degree  inexpedient.  It  is  far  better  to 
adhere  to  the  rigid  rules  established  and  firm- 
ly settled  for  centuries,  than  to  open  so  wide 
a  door  for  litigation,  and  render  uncertain  the 
titles  to  lands.  The  experience  of  courts  in 
the  construction  of  wills,  the  difEculty  in  get- 
ting at  the  real  intent  of  the  party,  where  im- 
perfectly exp'ressed,  or  where  he  had  none; 
the  doubt  which  always  exists  in  such  cases, 
whether  the  court  has  spelt  out  what  the  party 
meant,  all  combine  to  show  the  importance  of 
adhering  to  the  rule,  that  the  grantor  of  a  deed 
must  express  his  intent  by  the  use  of  the  nec- 
essary words  of  conveyances,  as  they  have 
been  settled  long  ago  by  judicial  decision  and 
the  writings  af  the  sages  of  the  law.  Upon 
this  point,  it  is  not  safe  to  yield  an  inch;  if 
that  is  done,  the  rule  is  effectually  broken 
down.     Where  shall  we  stop  if  we  start  here? 

Littleton  says:  Tenant  in  fee  simple  is  he 
which  hath  lands  or  tenements  to  hold  to  him 
and  his  heirs  for  ever.  For  if  a  man  would 
purchase  lands  or  tenements  in  fee  simple,  it 
behooveth  him  to  have  these  words  in  his  pur- 
chase: "to  have  and  hold  to  him  and  his  heirs." 
For  these  words,  "his  heirs,"  make  the  estate 
of  inheritance.  For  if  a  man  purchase  lands 
by  these  words,  "to  have  and  to  hold  to  him 
forever."  or  by  these  words,  "to  have  and  to 
hold  to  him  and  his  assigns  forever,"  in  these 
two  cases  he  hath  but  an  estate  for  life,  for 
that  there  lack  these  words,  "his  heirs,"  which 
words  only  make  an  estate  of  inheritance  in 
all  feoffments  and  grants. 

"These  words,  'his  heirs,'  doe  not  only  extend 
to  his  immediate  heirs,  but  to  his  heirs  remote 
and  most  remote,  born  and  to  be  born,  sub 
quibus  voeabulis  'ha?redibus  suis'  omnes  hiere- 
des,  propinqui  comprehenduntur,  et  remoti, 
nati  et  naseituri,  and  hreredum  appellatione 
veniunt,  haeredes  haeredum  in  infinitum.  And 
the  reason  wherefore  the  law  is  so  precise  to 
prescribe  certine  words  to  create  an  estate  of 
inheritance,  is  for  avoiding  of  uncertainty,  the 
mother  of  contention  and  confusion."  Co  Lift, 
la,  Sb;    1   Shep.   Touch.   101;    Com.   Dig.    tit. 


"Estate,"  A,  2;  Prest.  Est.  1,  2,  4,  5;  4  Cruise, 
Dig.  tit.  32,  c.  21,  cl.  1. 

There  are  but  two  or  three  exceptions  to  this 
rule.  The  cases  of  sole  and  aggregate  corpo- 
rations, and  where  words  of  reference  are 
used  "as  fully  as  he  enfeoffed  me."  A  gift 
in  frank  marriage,  &c.,  which  are  to  be  found 
stated  in  the  authorities  already  cited. 

These  exceptions  create  no  confusion;  they 
are  as  clearly  defined  and  limited  as  the  rule 
itself. 

The  word  "heirs"  is  as  necessary  in  the  crea- 
tion of  an  estate  tail  as  a  fee  simple.  1  Co. 
Litt.  20a;  4  Cruise,  Dig.  tit  32,  c.  22,  §  11;  4 
Kent.  Comm.  6;    2  Bl,  Comm.  114. 

This  author  sets  this  doctrine  in  clear  light. 
He  says:  As  the  word  "heirs"  is  necessaxy 
to  create  a  fee,  so,  in  further  limitation  of  the 
strictness  of  feodal  donation,  the  word  "body," 
or  some  other  word  of  procreation,  is  neces- 
sary to  make  it  a  fee  tail.  If,  therefore,  the 
words  of  inheritance  or  words  of  procreation 
be  omitted,  albeit  the  other  wards  are  inserted 
in  the  grant,  this  will  not  make  an  estate  tail, 
as  if  tlie  grant  be  to  a  man,  and  his  issue  of 
her  body,  to  a  man  and  his  seed,  to  a  man  and 
his  children  or  offspring,  all  these  are  ouly 
estates  for  life,  there  wanting  the  words  of 
inheritance. 

The  rule  in  Shelley's  Case,  that  when  the 
ancestor,  by  any  gift  or  conveyance,  takes  an 
estate  of  freehold,  and  in  the  same  gift  or  con- 
veyance an  estate  is  limited  either  immediately 
or  mediately  to  his  heirs  in  fee  or  in  tail,  that 
always  in  such  cases  the  word  "heirs"  are 
words  of  limitation,  and  not  of  purchase  (Shel- 
ley's Case,  1  Coke,  93;  4  Cruise,  Dig.  c.  23, 
§  3,  tit.  32),  requires  the  use  of  the  word 
"heirs"  to  bring  it  in  operation. 

No  circumlocution  has  been  ever  held  suffi- 
cient. It  is  believed  no  case  can  be  found 
where  this  rule  has  been  held  to  apply,  unless 
the  word  "heirs"  has  been  used  in  the  second 
limitation. 

Neither  the  reseai'ches  of  the  learned  judge 
who  delivered  the  opinion  of  the  supreme  court, 
nor  those  of  the  very  diligent  counsel  who 
argued  the  case  here,  have  produced  a  case  de- 
cided in  England,  or  in  any  state  of  this  Union 
abiding  by  the  common  law,  where,  in  a  con- 
veyance by  deed,  the  word  "children"  luis  been 
held  to  be  equivalent  to  "heirs."  That  tliis 
has  been  determined  in  regard  to  wills  is  free- 
ly couc-eded,  but  tha.t  does  not  answer  the  req- 
uisition. The  reasoning  of  the  supreme  court 
is,  to  my  mind,  entirely  unsatisfactory.  In  the 
administration  of  the  law  of  real  estate,  I  pre- 
fer to  stand  suiier  antiquas  vias,  stare  decisis; 
to  maintain  the  great  rules  of  property;  to 
adopt  no  new  dogma,  however  convenient  it 
may  seem  to  be.  The  refined  course  of  rea- 
soning adopted  in  the  face  of  so  great  a  weight 
of  authority  rather  shows  what  the  law  might 
have  been,  than  what  it  is. 

I  am  utterly  unprepared  to  overturn  the  com- 
mon law,  as  understood  by  Littleton,  Coke, 
Shepherd,  Cruise,  Blackstone,  Kent  and  all  the 
judges  who  have  administered  it  for  three  cen- 


78 


ESTATES  IN   REAL  PROPERTY. 


turies,  and  to  adopt  the  dogma,  that  intention, 
not  expression,  is  hereafter  to  be  the  guide  in 
the  construction  of  deeds.  That  would  be  as 
unwarrantable  as  dangerous. 

Under  this  deed,  Mrs.  Adams  took  an  estate 
for  life,  which  was  not  enlarged  by  the  subse- 
quent limitation  to  a  fee  tail.  The  remainder 
vested  in  Anna  Adams,  the  child  of  the  mar- 
liage,  for  life,  subject  to  open  and  let  in  after- 
Wm  children  to  the  same  estate. 

The  deed  operated  as  a  covenant  to  stand 
seized.  The  proper  and  technical  words  of 
such  conveyance  are,  "stand  seized  to  the  use 
of,"  &c.,  but  any  other  words  wUl  have  the 
same  effect,  if  it  appear  to  have  been  the  in- 
tention of  the  parties  to  use  them  for  that  pur- 
pose. The  words  "bargain  and  sell,  give, 
grant,  and  confirm,"  have  been  allowed  so  to 
operate.    4  Cruise,  Dig.  tit,  32,  c.  10,  §§  1,  2. 

By  such  a  covenant,  an  estate  may  be  limited 
to  a  person  not  in  esse,  if  within  the  considera- 
tions of  blood  or  marriage.  Fearne,  Rem.  288; 
1  Rep.  154,  2;  1  Prest.  Est  172,  176;  Doe  v. 
Martin,  4  Term  R.  30. 

This  deed,  on  the  face  of  it,  expresses  the 
considerations  of  natural  love  and  affection,  as 
well  as  the  money  consideration  of  one  dollar. 

It  follows,  from  these  considerations,  that 
Adams  is  not  entitled  to  curtesy  in  the  lands 
on  surviving  his  wife.  The  mortgage  to  Ross 
created   no  valid  charge  on  the  estate  against 


Mrs.  Adams,  she  being  a  minor  when  it  was 
executed. 

Mrs.  Adams'  interest  in  the  land  was  subject 
to  the  provisions  of  the  act  for  the  better  se- 
curing the  property  of  married  women,  passed 
March  25th,  1852;  the  deed  to  her  was  after 
this  act  passed. 

This  was  clearly  a  gift  or  grant,  within  the 
meaning  of  the  act.  The  legislature  did  not 
intend  to  limit  the  benefits  of  the  act  to  prop- 
erty conveyed  by  a  deed  operating  as  a  gift  or 
grant;  all  the  ordinary  modes  of  acquiring 
property  by  deed  were  intended  by  the  use  of 
the  terms  gift,  grant.  The  reasoning  of  Jus- 
tice Vredenburgh  upon  this  point  is  conclusive. 
Upon  the  determination  of  the  respective  life 
estates,  the  land  reverts  to  Miss  Traphagen. 

The  judgment  of  the  supreme  court  must  be 
reversed.  The  money  in  court  must  be  in- 
vested for  the  benefit  of  Mrs.  Adams  for  life, 
and  after  her  death  for  the  benefit  of  the  sur- 
viving children  of  the  marriage  in  equaJ  shiaxes, 
during  their  respective  lives,  and  at  their 
deaths,  respectively,  their  several  shares  must 
be  paid  to  Miss  Traphagen,  or  if  she  be  then 
dead,  to  her  heirs  or  devisees. 

COMBS,  GREEN,  RISLEY,  VAN  DYKE, 
WOOD,  OORNELISON,  HAINES,  and 
SWAIN,  JJ.,  concurred. 


I 


FEE  SIMPLE  AND  FEE  TAIL. 


BROWN   V.   ADDISON   GILBERT 
HOSPITAL. 

(29  N.  E.  625,  155  Mass.  323.) 

Supreme  Judicial  Ck)urt  of  Massachusetts. 
Essex.     Jan.  7,  1S92. 

Appeal  from  .superior  court,  Essex  county. 

Bill  by  Eben  T.  Brown  against  the  Addison 
Gilbert  Hospital,  for  specific  performance  of 
an  agreement  for  the  sale  of  certain  real  es- 
tate. Plaintiff  derived  his  title  to  the  lands 
in  question  from  the  fifth  clause  of  the  will 
of  Jonathan  Brown,  which  is  as  follows:  "I 
give  and  devise  to  my  grandson  Eben  Brown, 
the  son  of  my  son  Jonathan,  the  farm  as 
hereinbefore  described,  subject  to  the  life-es- 
tate therein  given  to  my  son  Jonathan,  and 
subject,  also,  to  the  limitation  that,  if  said 
Eben  die  without  issue,  then  his  devise  is  to 
go  to  other  son  or  sons  of  my  son  Jonathan, 
if  any  there  should  be,  and,  if  not,  to  the 
heirs  of  my  son  Jonathan,  forever."  Defend- 
ant avers  that  the  plaintiff  cannot  convey  a 
good  and  clear  title  to  said  land,  as  his  estate 
in  said  land  is  a  fee  determinable  in  the  event 
of  his  dying  leaving  no  issue  living  at  his  de- 
cease, with  an  executory  devise  over  to  oth- 
ers. Complainant  obtained  a  decree,  and  de- 
fendant appeals.     Affirmed! 

C.  A.  Russell,  for  plaintiff.  J.  J.  Flaherty, 
for  defendant. 

BARKER,  J.  The  testator  devised  to  his 
son  Jonathan  the  improvement,  rents,  and  use 
of  a  certain  farm,  for  and  during  the  term  of 
his  natural  life;  and,  by  a  subsequent  clause 
of  his  will,  gave  and  devised  to  Eben,  "the 
son  of  my  son  Jonathan,  the  farm  as  herein- 
before described,  subject  to  the  life-estate 
therein  given  to  my  son  Jonathan,  and  sub- 
ject, also,  to  the  limitation  that,  if  said  Eben 
die  without  issue,  then  his  devise  is  to  go  to 
other  son  or  sons  of  my  son  Jonathan,  if 
any  there  should  be,  and,  if  not,  to  the  heirs 
of  my  son  Jonathan,  forever."  The  will 
was  admitted  to  probate  on  February  16,  IS-tT. 
The  testator's  son  Jonathan  is  now  dead, 
and  never  had  any  son  but  Eben.  Eben  is 
childless  and  unmarried,  and  is  now  in  posses- 
sion of  the  farm,  claiming  title  under  the  will. 
By  the  devise,  without  express  words  of  in- 
heritance, of  the  farm,  subject  to  the  life-es- 
tate of  his  father,  Eben  would  take  a  fee,  un- 
less it  clearly  appeared  by  the  will  that  the 
testator  intended  to  give  him  a  less  estate. 
Rev,  St.  c.  62,  §  4;  Briggs  v.  Shaw,  9  Allen, 
516;  Goodwin  v.  McDonald,  153  Mass.  481, 
27  N.  E.  5.  The  defendant  contends  that 
Eben's  estate  is  a  fee  determinable  upon  his 
own  death  without  issue  surviving  him,  and 
that  upon  such  death  the  heirs  of  the  testa- 
tor's sou  Jonathan  will  take  by  way  of  ex- 
ecutory devise.  Eben  claims  that  he  is  in  of 
an  estate  tail,  his  fee  being  cut  down  by  the 
implication  in  favor  of  his  issue  as  objects  of 
the  testator's  bomity,  and  that  the  devise  over, 
if  he  die  without  issue,  is  a  remainder  in  ex- 
pectancy after  his  estate  tail.  Another  pos- 
sible construction  might  be  that   Eben's  re- 


mainder was  intended  to  be  an  absolute  fee, 
subject  to  be  divested  in  favor  of  the  other 
son  or  sons  of  the  heirs  of  Jonathan,  if  Eben 
died  without  issue  before  the  death  of  Jona- 
than, but  with  which  nothing  could  interfere 
if  Eben  survived  Jonathan.  Unless  the  con- 
struction which  gives  to  Eben  only  a  deter- 
minable fee,  and  to  the  other  son  or  sons  or 
the  heirs  of  Jonatliau  an  executory  devise,  is 
a  correct  one,  Eben  can  convey  a  good  title 
to  the  property.  Against  that  construction,  in 
our  opinion,  the  following  considerations 
must  prevail:  There  is  no  reason  to  suppose 
that  the  testator  desired  to  create  an  execu- 
tory devise  for  the  benefit  of  any  specific  per- 
sons known  to  him,  and  whom  he  desired  to 
make  objects  of  his  bounty.  There  were  nev- 
er any  other  son  or  sons  of  Jonathan.  The 
testator  must  have  supix)sed  that  such  might 
be  born,  and,  they  being  younger  than  Eben, 
it  would  not  be  absurd  to  suppose  that  they 
might  possibly  survive  both  Eben  and  his 
children.  The  devise  over  to  such  son  or 
sons  is  therefore  not  conclusive  that  the  tes- 
tator intended  a  definite  failure  of  issue  at 
Eben's  own  death.  The  alternative  devise  to 
the  heirs  of  the  testator's  son  Jonathan  pro- 
vided for  some  one  to  take  upon  an  indefinite 
failure  of  Eben's  issue,  however  remote  the 
failure  might  be,  if  there  should  then  be  living 
any  of  the  testator's  own  blood.  The  testa- 
tor's language  did  not  refer  to  any  existing 
person  when  he  spoke  of  "any  other  sou  or 
sons  of  Jonathan."  Taking  the  whole  will  to- 
gether, his  intention  was  to  keep  the  farm  in 
the  family  of  his  son  Jonathan,  giving  the 
benefit  of  it  to  Eben,  Jonathan's  then  only 
and  so  eldest\Son,  and  to  Eben's  issue  so  long 
as  there  should  be  such  issue;  but  if  such  is- 
sue should  fail,  then  to  the  other  son  or  sons 
of  Jonathan,  if  such  should  ix)ssibly  have 
come  into  being  and  be  then  living;  and,  if 
there  were  no  such  other  sons  then  living,  to 
Jonathan's  hell's,  whoever  they  might  be. 
The  testator  used  language  which  so  long  has 
received  a  technical  consti'uction  that  it  was 
said  by  this  court,  in  the  year  1809,  to  have 
become  a  rule  of  property;  and,  unless  the 
contrary  clearly  appears,  he  should  be  held 
to  have  used  it  in  its  technical  sense.  Ide  v. 
Ide,  5  Mass.  501;  Parker  v.  Parker,  5  Mete. 
(Mass.)  134;  Hay  ward  v.  Howe.  12  Gray.  51: 
Allen  v.  Trustees,  102  Mass.  262,  264.  When 
he  devised  the  farm  over,  "if  Eben  die  with- 
out issue,"  he  meant  the  devise  over  to  take 
effect  upon  an  indefinite  failure  of  Eben's  is- 
sue; and  he  intended  by  the  whole  provision 
to  give  to  Eben  an  estate  tail,  and  to  the  pos- 
sible other  son  or  sons  of  Jonathan,  who  in 
fact  never  were  born,  or  to  Jonathan's  heirs, 
a  remainder  in  expectancy  after  the  estate 
tail,  and  not  an  executory  devise.  Nightin- 
gale V.  Burrell,  15  Pick.  110;  Hall  v.  Priest,  6 
Gray,  18,  20.  The  result  is  that,  the  construc- 
tion of  the  will  which  gives  to  Eben  a  deter- 
minable fee,  and  to  the  heirs  of  Jonathan  a 
future  interest  by  way  of  executory  devise, 
being  untenable.  Eben  can  convey  a  good  title. 
Decree  atfirmed. 


80 


ESTATES  IN  REAL  PROPERTY. 


BOYKIN  et  al,  v.  ANCRUM  et  al. 

(6  S.  E.  305,  28  S.  0.  486.) 

Supreme  Couit  of  South  Carolina.     April  17, 
1888. 

Appeal  from  common  pleas  circuit  court  of 
Kershaw  county;    Norton,  Judge. 

Action  by  Elizabeth  B,  Boykin  and  others 
against  W.  A.  Ancrum  and  others  to  recover 
possession  of  lands  to  which  plaintiffs  claimed 
title  under  the  will  of  William  Ancrum,  de- 
ceased. The  case  was  referred  to  a  master, 
whose  decisions  were  partially  afBrmed  and 
partially  reversed  by  the  circuit  court  on  ap- 
peal.    From  this  decree  both  parties  appeal. 

W.  M.  Shannon,  for  plaintiffs.  J.  T.  Hay, 
for  defendants. 

McGOWAN,  J.  In  the  year  1831  William 
Ancrum  died,  leaving  a  will,  by  the  fifth  clause 
of  which  he  devised  as  follows:  "And  as  to 
my  real  estate  I  give  and  bequeath  and  devise 
unto  my  dearly-beloved  wife,  Julia,  my  dwell- 
ing-house situate  in  the  town  of  Camden,  with 
the  appurtenant  lands  and  hereditaments  there- 
unto belonging,  *  *  •  for  and  during  the 
term  of  her  natural  life.  Froin  and  after  the 
decease  of  my  said  dearly-beloved  wife,  I  give 
and  bequeath  and  devise  my  said  dwelling- 
house  *  *  *  to  my  eldest  son,  Fowler  Bris- 
bane Ancrum,  for  and  during  the  term  of  his 
natural  life;  and  from  and  after  his  decease 
to  his  lawful  issue,  absolutely  and  in  fee-sim- 
ple. If  my  eldest  son.  Fowler  Brisbane  An- 
crum, should  die,  leaving  no  lawful  issue  at 
the  time  of  his  decease,  then  and  in  such  case 
I  give,  bequeath,  and  devise  my  dwelling 
*  *  *  to  my  second  son,  William  Alexander 
AncruTU,  for  and  during  the  term  of  his  natural 
life;  and  from  and  after  his  decease  to  his 
lawful  issue,  absolutely  and  in  fee-simple. 
But  if  my  said  second  son,  William  Alexander 
Ancrum,  should  die,  leaving  no  lawful  issue 
at  the  time  of  his  decease,  then  and  in  such 
case  I  give,  bequeath,  and  devise  my  said 
dwelling,  etc.,  to  my  third  son,  Thomas  James 
Ancrum  for  and  during  the  term  of  his  natural 
life;  and  from  and  after  his  decease  to  his 
lawful  issue,  forever  and  in  fee-simple,"  etc. 
The  eldest  son.  Fowler  Brisbane  Ancrum,  died 
early,  without  lawful  issue  at  the  time  of  his 
death.  The  second  son,  William  Alexander 
Ancrum,  purchased  the  life-estate  of  his  moth- 
er, Julia,  (afterwards  Mrs.  Glass,)  in  1837, 
(the  deed,  however,  was  not  proved;)  and  thus 
being,  as  he  doubtless  supposed,  the  owner  of 
the  fee,  on  March  25,  1857,  he  conveyed  the 
premises  described,  with  the  usual  warranty, 
to  one  Joseph  W.  Doby,  who,  in  1863,  con- 
veyed them  to  James  R.  Read;  and  he  (1873) 
to  Martha  C.  Jennings;  and  she  (1876)  to  E. 
D.  Durham;  and  he  (1876)  to  Thomas  J.  An- 
crum; and  he  (1881)  conveyed  the  same  to 
William  A.  Ancrum,  trustee,  with  the  excep- 
tion of  one-half  acre,  which  was  conveyed 
(1884)  to  Fannie  C.  Johnson;  and  William  A. 
Ancrum,  trustee,   (1885)  conveyed  one  acre  of 


said  premises  to  H.  TT.  Parker.  Fannie  C^ 
Johnson,  being  advised  that  she  had  good  legal 
title,  made  improvements  on  the  premises  con- 
veyed to  her,  which  enhanced  their  value  $1,- 
450;  and  William  A.  Ancrum,  trustee,  sup- 
posing that  his  title  was  good,  made  improve- 
ments on  the  premises  conveyed  to  him,  which 
enhanced  their  value  $2,000.  William  Alex- 
ander Ancrum  died  in  the  month  of  July,  1862, 
leaving  at  the  time  of  his  death  as  his  lawful 
issue  his  son,  Thomas  A.  Ancrum,  and  four 
daughters,  viz.,  Mary,  who  intermarried  with 
C.  J.  Shannon;  Elizabeth  B.,  who  intermarried 
with  Samuel  Boykin;  Ellen,  who  intermarried 
with  Francis  D.  Lee;  and  Margaret,  who  in- 
termarried with  Samuel  F.  Boykin.  Elizabeth 
was  born  April  25,  1843,  and  Margaret  was 
born  on  May  6,  1848,  and  died  April  28,'  1884, 
leaving  as  her  heirs  at  law  her  husband,  Sam- 
uel F.  Boykin,  and  four  minor  children,  viz., 
Douglass  A.,  Samuel  F.,  Mattie  R.,  and  Wil- 
liam A.  Boykin.  In  1872,  while  James  R. 
Read  held  the  premises,  Thomas  J.  Ancrum, 
Mary  A.  Shannon,  and  Ellen  D.  Lee,  three  of 
the  children  of  William  Alexander  Ancrum, 
by  their  deed  under  seaJ,  released  and  relin- 
quished all  right  or  claim  in  said  premises  sold 
by  their  father.  Julia  Glass,  the  widow  of 
the  testator,  died  in  1885;  and  Elizabeth  B. 
Boykin  and  the  husband  and  children  of  her 
deceased  sister  Margaret  Boykin,  (being  the 
two  children  of  William  A.  Ancrum,  who  did 
not  release  their  interest  in  the  premises,)  in- 
stituted this  action,  some  time  in  the  latter  part 
of  the  year  1885,  (the  exact  date  does  not  ap- 
pear,) against  the  several  parties  in  possession, 
to  recover  their  respective  shares  of  the  afore- 
said premises,  as  purchasers  under  the  will 
of  William  Ancrum,  and  to  partition  the  same 
among  themselves.  The  defendants  claim  that, 
the  first  son.  Fowler  Brisbane  Ancrum,  being 
out  of  the  question,  the  devise  gave  a  vested 
fee  conditional  to  William  A.  Ancrum,  and, 
having  aliened  the  premises  after  issue  born, 
his  alienees  are  seized  "in  fee;  and,  failing  in 
this  construction,  that  they  had  acquired  title 
by  the  statute  of  limitations  and  presumption 
of  a  grant  from  lapse  of  time,  etc.  The  issues 
of  fact  and  of  law  were  referred  to  the  master, 
J.  D.  Dunlap,  Esq.,  who  made  a  very  full  and 
clear  statement  of  the  facts,  as  herein  sum- 
marized, and  held  that  William  A.  Ancrum 
took  under  his  father's  will  only  a  life-estate 
in  remaindei  after  the  life-estate  of  his  mother 
Julia,  and  that  his  children  and  grandchildren 
(whose  parent  was  dead)  took  by  purchase  as 
remainder-men,  and  not  as  heirs  by  limitation; 
and  that  Elizabeth  B.  Boykin  and  the  heirs 
of  her  deceased  sister  Margaret  Boykin  are 
entitled  to  recover  their  shares  of  the  premises 
in  question, — the  said  Elizabeth  B.  one-fifth 
part  thereof,  and  the  other  plaintiffs  (heirs  of 
Margaret)  another  one-fifth  part. — and  all  prop- 
er rents,  and  allowing  credits  for  improvements 
accordingly,  etc.  This  report  was  heard  upon 
exceptions  by  his  honor.  Judge  Norton,  who 
confirmed  the  report  as  to  the  construction  of 
the  will  of  William  Ancrum;    but  he  held  that, 


MERGER. 


81 


upon  the  purchase  of  his  mother's  (Julia's)  life- 
ostute  by  William  Alexander  Ancrum,  that  es- 
tate was  merged  in  his  own  life-estate;  and  as 
that  ended  with  his  death,  in  July,  18G2,  a  right 
of  action  then  accrued  to  the  remainder-men, 
who  were  under  no  disability  to  sue;  and  that 
the  lapse  of  20  years  from  that  time  until  the 
action  was  brought  raised  the  presumption  of 
a  grant  from  Mrs.  Elizabeth  B.  Boykin,  and, 
as  to  her,  he  dismissed  the  complaint;  but  he 
decreed  that  Samuel  F.  Boykin,  the  husband 
of  Margaret,  who  had  died,  was  entitled  to 
one-fifteenth,  and  each  of  her  four  minor  chil- 
dren to  one-thirteenth,  of  the  premises  claimed. 
From  this  decree  both  the  plaintiffs  and  defend- 
ants appeal  to  this  court;  the  defendants  upon 
the  single  ground  that  "his  honor  erred  in  ad- 
judging that,  under  the  will  of  William  An- 
crum, the  children  of  William  A.  Ancrum  took, 
as  purchasers,  an  estate  in  fee-simple  in  re- 
mainder in  the  premises  described,  and  that 
William  A.  Ancrum  took  only  a  life-estate 
therein."  The  plaintiffs'  exceptions:  "(1)  Be- 
cause his  honor  erred  in  holding  that,  when 
W.  A.  Ancrum  purchased  the  life-estate  of 
Mrs.  Julia  Glass  in  the  premises  described  in 
the  complaint,  her  life-estate  merged  in  the 
life-estate  of  the  said  W.  A.  Ancrum.  (2)  Be- 
cause his  honor  erred  in  holding  that  the  pre- 
sumption of  a  grant  was  set  in  motion  against 
the  plaintiffs  at  the  time  of  the  death  of  W. 

A.  Ancrum.  (3)  Because  his  honor  erred  in 
holding  that  the  occupancy  of  the  premises 
since  the  death  of  W.  A.  Ancrum  has  created 
a    complete  presumption   that   Mrs.    Elizabeth 

B.  Buy  kin  had  conveyed  her  interest  in  the 
premises  to  the  alienee  of  W.  A.  Ancrum.  (4) 
Because  his  honor  erred  in  not  holding  that  the 
presumption  arising  from  an  adverse  holding 
ceased  to  operate  from  the  time  of  J.  R.  Read's 
purchasing  the  interests  of  certain  co-tenants 

of  the   plaintiffs  on   the  day   of  , 

1872,  and  from  that  time  became  permissive 
and  amicable.  (5)  Because  his  honor  erred 
in  holding  that  the  defendants  are  entitled  to 

•interest  on  the  amount  allowed  them  for  im- 
provements from  the  day  of  filing  of  said  de- 
cree, when  the  evidence  shows  that  they  are  in 
possession  of  said  premises,  and  receiving  the 
benefits  of  the  same." 

As  to  the  construction  of  "the  devise:  "To 
my  second  son,  William  Alexander  Ancrum, 
for  and  during  the  term  of  his  natural  life; 
and  from  and  after  his  decease  to  his  lawful 
issue,  absolutely  and  in  fee-simple;  but  if 
my  said  second  son.  William  Alexander  An- 
erum,  should  die,  leaving  no  lawful  issue  at  the 
time  of  his  decease,  then  and  in  such  case 
oier,"  etc.  Without  going  again  into  the  au- 
thorities upon  the  subject,  we  think  this  case 
is  concluded  by  that  of  Mclntyre  v.  Mclntyre, 
16  S.  C.  294,  where  the  authorities  are  cited 
and  the  conclusion  satisfactorily  stated  by  Mr. 
Justice  Mclver  as  follows:  "We  think  the 
authorities  in  this  state  conclusively  show  that 
where  the  word  'issue'  is  so  qualified  by  addi- 
tional words  as  to  evince  an  intention  that  it 
is  not  to  be  taken  as  descriptive  of  an  indefinite 

GATES,R.r.-G 


line  of  descent,  but  is  used  to  indicate  a  new 
stock  of  inheritance,  the  rule  in  Shelley's  Case 
does  not  apply."  In  that  case,  as  in  this,  the 
antecedent  estate  was  expressly  "for  life," 
and,  after  the  decease  of  the  tenant  for  life, 
to  the  "issue."  The  superadded  words  there 
were,  "and  their  heirs  forever,"  while  here 
they  are,  "absolutely  and  in  fee-simple,"— an 
equivalent  phrase  certainly  quite  as  strong  as 
the  other.  Besides,  here  there  is  still  another 
limitation  over  to  the  third  son,  Thomas  James 
Ancrum:  "But  if  my  said  second  son,  William 
A.  Ancrum,  should  die,  leaving  no  lawful  issue 
at  the  time  of  his  decease,"  etc.  We  agree 
with  the  master  and  circuit  judge  that  William 
Alexander  Ancrum  took  only  a  life-estate  in 
the  premises  described,  and  that  there  was  a 
limitation  over  to  his  issue  as  purchasers. 

Then   as   to   the   plaintiffs'    exceptions.     The 
first  charges  that  it  was  error  in  the  judge  to 
hold  "that,  when  W.  A.  Ancrum  purchased  the 
life-estate  of  Mrs.  Julia  Glass  in  the  premises 
described,   her   life-estate   merged    in    the    life- 
estate  of  W.  A.   Ancrum."     It   was  certainly 
just   when   Chancellor   Kent   adopted   the   lan- 
guage  of   a   great   master   in    the   doctrine   of 
merger,   "that  the  learning  under  this  head  is 
involved    in    much    intricacy    and    confusion." 
"Merger  is  described  as  the  annihilation  of  one 
estate  in  another.     It  takes  place  usually  when 
a  greater  estate  and  a  less  coincide  and  meet 
in  one  and  the  same  person  without  any  inter- 
mediate estate,  whereby  the  less  is  immediately 
merged — that  is,  sunk  or  drowned— in  the  great- 
er."    Garland  v.  Pamplin,  32  Grat.  305:    2  BI. 
Comm.  177;   4  Kent,  Comm.  100.    Taking  this 
definition,    do   the  conditions  exist   here   for   a 
merger?     Mrs.    Glass   had   an   estate   for   fife, 
and  (passing  over  the  eldest  son,  who  had  died 
early)  the  next  vested  estate  was  that  of  Wil- 
liam  Alexander  Ancrum,  which   was  also   for 
life,    without    any    estate    intervening.     These 
respective  estates   were  to  be  enjoyed   succes- 
sively and  not  concurrently;    that  of  the  moth- 
er, Julia,   coming  first  in  the  order  of  succes- 
sion.    But  in   1837  W.   A.  Ancrum  purchased 
the  life-estate  of  Julia,  and  held  both,  claiming 
the  premises   as   his  own   absolutely,   until   he 
sold  and  conveyed  them  to  Doby,  in  1857.     Did 
not  this  make  the  case  referred  to  in  the  books 
"of  the  incompatibility  of  a  person  filling  at  the 
same  time  the  characters  of  tenant  and  remain- 
der in  one  and  the  same  estate?"     It  is  said, 
however,   that  both  estates  were  for  life,  and 
therefore    equal    in    degree,    and    merger    only 
takes  place  when  a  larger  and  smaller  estate 
meet  in  the  same  person.     The  general  rule  is 
that  equal  estates  will  not  drown  in  each  otlier, 
but     there     are     well-established     exceptions. 
Were  these  estates  equal  in  the  sense  of  the 
rule?     Lfooking  at  them  from  the  point  of  view 
of  W.  A.  Ancrum,  one  was  an  estate  for  the 
life  of  Mrs.  Julia  Glass,  preceding  his  estate, 
and  the  other  succeeding  was  for  his  own  life. 
There  seems  to  be  something  in  the  order  in 
which  the  estates  stand   to  each  other  in  th<? 
matter  of  time.     Chancellor   Kent   states   the 
rule    thus:    "The    merger    is    produced    either 


82 


ESTATES  IN  REAL  PROPERTY. 


from  the  meeting  of  an  estate  of  higher  degree 
with  an  estate  of  inferior  degree,  or  from  the 
meeting  of  the  particular  estate  and  the  imme- 
diate reversion  in  the  same  person.  An  estate 
for  years  may  merge  in  an  estate  in  fee  or  for 
life;  and  an  estate  pour  autre  vie  may  merge 
in  an  estate  for  one's  own  life;  and  an  estate 
for  years  may  merge  in  another  estate  or  term 
for  years,  in  remainder  or  reversion.  *  *  * 
To  effect  the  operation  of  merger,  the  more 
remote  estate  must  be  the  next  vested  estate 
in  remainder  or  reversion,  without  any  inter- 
vening estate,  either  vested  or  contingent;  and 
the  estate  in  reversion  or  remainder  must  be  at 
least  as  large  as  the  preceding  estate."  It 
seems  that,  even  when  the  estates  are  theo- 
retically equal,  the  first  in  the  order  of  succes- 
sion may  merge  in  the  next  vested  remainder, 
being  in  this  respect  somewhat  like  a  surren- 
der, which  is  the  relinquishment  of  a  particular 
estate  in  favor  of  the  tenant  of  the  next  vest- 
ed estate  in  remainder  or  reversion.  In  the 
notes  to  the  case  of  James  v.  Morey,  2  Cow. 
246,  3  Shar.  &  B.  Lead.  Cas.  231,  (lately  pub- 
lished, 1S87,)  the  rule  is  thus  stated:  "The 
estate  in  reversion  or  remainder  must  be  as 
large  as,  or  larger  than,  the  estate  to  be  mer- 
ged. 3  Prest.  Conv.  51.  The  expression  'as 
large  or  larger'  must  be,  of  course,  taken  in 
the  technical  sense.  Thus  an  estate  for  life 
is  larger  than  an  estate  for  years,  although 
death  may  destroy  the  former  estate  long  be- 
fore the  efflux  of  time  has  brought  the  latter 
to  a  conclusion.  Thus  if  a  lease  be  made  for 
years,  with  a  remainder  to  the  lessee  for  life, 
the  estate  for  years  will  merge;  but  if  there 
be  an  estate  for  life,  with  remainder  to  the 
life-tenant  for  years,  there  will  be  no  merger, 
Co.  Lift.  54b.  In  Sheehan  v.  Hamilton,  4 
Abb.  Dec.  211,  it  is  said  that  estates  of  equal 
degree  do  not  merge;  but,  whether  this  be 
strictly  so  or  not,  the  effect  of  a  merger  will 
be  produced  by  the  unity  of  possession.  An 
estate  at  will  will  merge  in  an  estate  for  years. 
3  Prest.  Oonv.  176.  Estates  for  years  may 
merge  in  each  other  or  in  estates  for  life;  es- 
tates for  life  will  merge.  Co.  Litt.  33Sb; 
Cary  v.  Warner,  63  Me.  571;  Allen  v.  Ander- 
son, 44  Ind.  395."  We  cannot  say  that  the 
circuit  judge  committed  error  in  holding  that, 
when  W.  A.  Ancrum  purchased  the  life-estate 
of  Mrs.  Glass  in  the  premises,  that  estate 
merged  in  his  estate. 

Exceptions  2,  3,  and  4  make  the  point,  sub- 
stantially, that  the  judge  erred  in  holding  that 
at  the  death  of  William  A.  Ancrum  (1862)  the 
rights  of  the  issue  in  remainder  attached,  and 


from  that  time  the  possession  of  the  partiea 
was  adverse,  so  as  to  put  in  motion  the  pre- 
sumption or  a  grant  from  Mrs.  Elizabeth  B. 
Boykin,  who  reached  her  majority  in  1864,  two 
years  after  the  death  of  her  father,  W.  A.  An- 
crum, and  more  than  20  years  before  the  com- 
mencement of  the  action.  The  life-estate  of 
Mrs.  Glass  was  the  first  in  the  order  of  suc- 
cession, and  doubtless  was  expected  to  be  the 
first  to  fall  in;  the  fact,  however,  was  other- 
wise, for  she  survived  W.  A.  Ancrum  for  more 
than  20  years.  It  is  true  that,  but  for  his  pur- 
chase of  her  estate,  W.  A.  Ancrum  would  nev- 
er have  reached  the  possession  of  his  estate; 
ajid  it  is  asked  whether,  under  these  circumstan- 
ces, his  right  must  be  limited  to  his  own  life- 
estate,  which,  though  vested,  he  never  enjoyed 
in  possession,  so  as  to  make  his  death  and  not 
hers,  the  time  at  which  an  action  accrued  to 
the  remainder-men.  At  first  view  it  is  not 
obvious  how  an  estate  which  turned  out  to  be 
the  longest  could  be  drowned  in  one  of  shorter 
duration;  but,  according  to  the  authorities,  it 
seems  that  such  was  the  necessary  consequence 
of  the  merger.  See  Mangum  v.  Piester,  16  S. 
C.  330;  4  Kent,  Comm.  99;  2  Pom.  Eq.  Jur. 
§  787,  and  notes,  where  it  is  said  that  "an  es- 
tate for  years  will  merge  in  a  reversionary  term 
of  years,  even  though  the  latter  is  of  less  du- 
ration," citing  among  other  authorities  Welsh 
V.  Phillips,  54  Ala.  309.  And  Chancellor  Kent 
says:  "The  estate  in  which  the  merger  takes 
place  is  not  enlarged  by  the  accession  of  the 
preceding  estate;  and  the  greater  or  only  sub- 
sisting estate  continues  after  the  merger  pre- 
cisely of  the  same  quantity  and  extent  of  own- 
ership as  it  was  before  the  accession  of  the 
estate  which  is  merged,  and  the  lesser  estate 
is  extinguished,"  etc.  We  cannot  doubt  that 
the  premises  were  held  adversely  to  all  the 
world.  During  his  life  William  A.  Ancrum 
held  them  as  his  own  absolutely.  Shortly  be- 
fore his  death  (in  1857)  he  conveyed  them  to 
Joseph  W.  Doby,  with  the  usual  warranty  of 
title.  We  do  not  see  how  the  reliuquisliment 
of  some  of  the  remainder-men  could  affect  the 
character  of  the  possession  as  to  those  who 
did  not  relinquish.  We  do  not,  however,  think 
that  the  defendants  should  have  interest  on 
the  value  of  their  improvements  while  they 
have  the  possession  and  use  of  the  same. 

The  judgment  of  this  court  is  that  the  judg- 
ment of  the  circuit  court,  with  the  slight  modi- 
fication as  to  interest  on  the  value  of  the  im- 
provements, be  affirmed. 

SIMPSON,  C.  J.,  and  McIVER,  J.,  concuT. 


I 


CONVENTIONAL  LIFE  ESTATES. 


83 


MERRITT  V.  SCOTT  et  ux. 

(81  N.  C.  385.) 

Supreme  Court  of  North  Carolina.    June  Term, 
1879. 

H.  R.  Bryan,  A.  G.  Hubbard,  W.  E.  Clarke, 
and   F.    M.    Simmons,    for   plaintiff.    Green   & 

Stevenson,  for  defendant. 

SMITH,  C.  J.  The  tract  of  land  described 
in  the  complaint  was  in  1842  conveyed  by  James 
Merritt,  the  owner,  to  his  son  John  Merritt, 
in  trust  for  another  son,  Francis  Merritt,  for 
life,  remainder  to  his  wife,  Deborah,  for  life 
or  widowhood,  and  with  a  further  limitation 
over  at  her  death  or  marriage  to  the  children  of 
Francis  then  living.  John  Merritt,  the  trustee, 
died  intestate,  leaving  children,  who,  with  the 
said  Deborah,  are  the  plaintiffs  in  this  action. 
The  life  tenant  Francis,  who  is  also  dead,  in 
his  lifetime  conveyed  his  estate  to  one  John 
Cox,  and  after  his  death  his  administrator,  un- 
der proceedings  in  the  probate  court  and  with 
license  therefor,  sold  and  conveyed  the  land  to 
the  defendant  Edward  Scott.  The  object  of  the 
suit  is  to  recover  the  land  for  the  use  of  said 
Deborah,  and  damages  for  its  detention  since 
the  death  of  Francis  Merritt. 

No  issue  as  to  title  is  made,  and  in  the  in- 
quiry before  the  jury  as  to  the  damages,  the 
defendant  offered  to  show  in  support  of  the  de- 
fence set  up  in  his  answer,  that  valuable  im- 
provements had  been  made  on  the  lands  both 
by  himself  and  the  preceding  occupant,  in  the 
erection  of  useful  buildings,  and  by  ditching, 
fencing,  and  manuring,  whereby  the  value  of 
the  land  had  been  greatly  enhanced.  The  evi- 
dence on  objection  from  plaintiff  was  excluded, 
and  the  exception  to  this  ruling  of  the  court  is 
the  only  point  presented  in  the  appeal. 

Under  instructions,  the  jury  assessed  the 
damages  from  August  18th,  1873,  whidi  we 
suppose  to  be  the  date  of  the  determination  of 
the  first  life  estate,  at  the  rate  of  one  hundred 
dollars  per  annum.  Whether  these  improve- 
ments or  any  of  them  were  made  during  the 
years  for  which  the  defendant  is  charged  for 
rent,  does  not  appear. 

We  think  it  clear  that  improvements  of  any 
kind  put  upon  land  by  a  life,  tenant  during  his 
occupancy,  constitute  no  charge  upon  the  land 
when  it  passes  to  the  remainderman.  He  is  en- 
titled to  the  property  in  its  improved  state, 
without  deduction  for  its  increased  value  by 
reason  of  good  management,  or  the  erection  of 
buildings  by  the  life  tenant,  for  the  obvious 
reason  that  the  latter  is  improving  his  own 
property  and  for  his  own  present  benefit.  This 
proposition  is  too  plain  to  need  the  citation  of 
authority. 

For  subsequent  rents  and  uses  he  is  entitled 
to  have  the  amount  reduced  by  those  improve- 
ments. Suppose,  while  holding  over,  the  de- 
fendant had  by  such  improvements  as  in  the 
answer  are  alleged  to  have  been  made,  rendered 
the  land  more  valuable,  as  it  comes  to  the  re- 
mainderman, would  it  not  be  reasonable  he 
should  pay  a  smaller  rent  than  if  nothing  of 


the  kind  had  been  done?  So  if  no  repairs  were 
made  and  the  buildings  had  gone  to  decay,  and 
by  mismanagement  and  bad  cultivation,  the 
farm  had  been  abused  and  its  value  impaired, 
a  full  and  larger  rent  might  justly  be  required 
of  the  tenant. 

The  evidence  of  such  improvements  as  were 
made  by  the  defendant,  after  his  estate  ex- 
pired, and  he  became  chargeable  with  rent, 
ought  to  have  been  admitted  and  considered  by 
the  jury  in  measuring  the  value  of  the  rent, 
and  in  mitigation  of  damages.  The  evidence 
was  competent  for  this  purpose  only,  and  not, 
in  case  the  improvements  were  worth  more 
than  the  rents,  to  constitute  a  counterclaim  for 
the  excess. 

The  rule  is  thus  stated  by  Mr.  Tyler;  "The 
defendant  should  be  allowed  for  the  value  of 
his  improvements  made  in  good  faith,  to  the 
extent  of  the  rents  and  profits  claimed,  and  this 
is  the  view  of  the  subject  which  is  supported 
by  the  authorities."    Tyler,  Ej.  849. 

Referring  to  the  action  for  mesne  profits 
which  might  be  brought  after  a  recovery  in 
ejectment,  Rufiin,  C,  J,,  uses  this  language: 
"The  jury  can  then  make  fair  allowance  out  of 
the  rents,  and  to  their  extent,  for  permanent 
improvements  honestly  made  by  the  defendant, 
and  actually  enjoyed  by  the  plaintiff,  taking 
into  consideration  all  the  circumstances," 
Dowd  V.  Faucett,  4  Dev.  92. 

Thus  far  the  jury  should  have  been  allowed 
to  hear  and  consider  the  evidence,  in  assessing 
the  sum  which  the  defendant  should  pay  for 
the  use  of  the  premises,  for  it  is  quite  apparent 
the  improvements  were  made  in  good  faith  and 
will  enure  to  the  plaintiff's  benefit. 

As  a  counterclaim  and  to  charge  the  land 
therewith  when  the  estate  in  remainder  is  vest- 
ed in  Deborah,  the  evidence  is  totally  inad- 
missible under  the  act  of  February  8,  1872. 
Battle's  Revisal,  c.  17,  §  262a  et  seq.  The  act 
is  not  applicable  to  a  case  like  this,  but  to  in- 
dependent and  adversary  claims  of  title,  and 
was  intended  to  introduce  a  just  and  reason- 
able rule  in  regard  to  them. 

The  owner  of  land  who  recovers  it  has  no 
just  claim  to  anything  but  the  land  itself  and  a 
fair  compensation  for  being  kept  out  of  posses- 
sion; and  if  it  has  been  enhanced  in  value  by 
improvements  made  under  the  belief  that  he 
was  the  owner,  the  increased  value  he  ought 
not  to  take  without  some  compensation  to  the 
other.  This  obvious  equity  is  established  by 
the  act.  But  to  enjoy  its  benefits,  a  party  aft- 
er judgment  must  file  his  petition  and  ask  to 
be  allowed  for  his  permanent  improvements, 
"over  and  above  the  value  of  the  use  and  oc- 
cupation of  such  land." 

If  the  court  is  satisfied  of  the  probable  truth 
of  the  allegation,  and  the  case  is  one  to  which 
the  statute  applies,  and  this  must  be  prelimi- 
narily determined,  it  may  suspend  execution, 
and  cause  a  jury  to  be  impaneled  "to  assess  the 
damages  of  the  plaintiff  and  the  allowance  to 
the  defendant"  for  his  permanent  improve- 
ments, "over  and  above  the  value  of  the  use 
and  occupation  of  the  land." 


84 


ESTATES  IN  REAL  PROPERTY. 


This  course  has  not  been  pursued,  and  the 
evidence  is  offered  in  the  trial  without  any 
previous  application  to  the  judge,  or  his  assent 
being  obtained.  But  waiving  the  informality, 
we  are  not  prepared  to  say  the  judge  was  in 
error  in  disallowing  the  evidence  for  the  pur- 
pose of  establishing  a  counterclaim  for  the  ex- 
cess.   The    defendant   is    entitled   to   have    his 


claim  for  improvements  made  since  the  expira- 
tion of  his  own  estate,  considered  by  the  jury 
in  estimating  the  value  of  the  rents,  under  ap- 
propriate instructions  from  the  court  in  rela- 
tion thereto.  For  this  error  in  wholly  rejecting 
the  evidence,  there  must  be  a  venire  de  novo, 
and  it  is  so  ordered. 
Error.    Venire  de  novo. 


CONVENTIONAL  LIFE  ESTATES. 


85 


WATKINS  V.  GREEX. 

(60  N.  W.  44,  101  Mich.  493.) 

Supreme  Court  of  Michigan.    Sept.  25,  1894. 

Error  to  circuit  court,  Wayne  county; 
George  S.  Hosmer,  Judge. 

Action  by  Gilbert  Wutkins  against  Nelson 
Green  for  breach  of  covenant  of  warranty. 
Judgment  for  defendant,  and  plaintiff  ap- 
peals.    Reversed. 

The  defendant  executed  to  plaintiff  a  war- 
ranty deed  of  certain  lands.  This  action  is 
brought  to  recover  for  alleged  breaches  of 
the  covenant  of  warranty.  The  title  to  the 
property  was  originally  in  one  Toussaint 
L'Esperance,  who  died  intestate  in  1842,  leav- 
ing a  widow  and  six  children.  He  bequeath- 
ed one-third  of  the  land  in  fee  to  his  widow, 
and  a  life  estate  in  the  remainder.  Upon 
the  termination  of  the  life  estate  the  two- 
thirds  were  bequeathed  in  equal  shares  to 
his  six  children.  Pri6r  to  1853  the  land  had 
been  unoccupied,  except  that  the  timber  had 
been  removed.  In  October,  1S50,  the  entire 
land  was  sold  for  the  taxes  of  1848,  and  was 
again  sold  in  October,  1851,  for  tlie  taxes  of 
1849.  October  21,  1851,  the  auditor  general 
issued  his  deed  to  Edward  Meyers  upon  the 
first  sale,  and  on  November  16,  1852,  a  sec- 
ond deed  upon  the  sale  of  1851.  The  first 
sale  was  to  one  Williams,  who  assigned  to 
Meyers.  The  second  sale  was  direct  to  Mey- 
ers. Two  of  the  children  died,  leaving  no 
issue.  One  is  dead,  leaving  one  child,  and 
three  are  still  living.  The  widow  died  May 
2,  1887.  July  19,  1851,  Meyers  obtained  by 
quitclaim  deed  the  interest  of  Edward,  one 
of  the  six  children,  who  was  the  owner  of 
an  undivided  one-ninth.  May  23,  1854,  the 
widow  and  two  of  the  children  quitclaimed 
their  interests  to  one  Nathan  H.  White,  who, 
on  July  1st  of  the  same  year,  conveyed  tlie 
land  by  quitclaim  deed  to  one  Daniel  Ball. 
Ball  deeded  to  one  Boltwood  in  1857.  June 
4,  1858,  the  interests  of  two  of  the  other  chil- 
dren passed  by  guardian's  deed  to  one  Dow, 
who  in  turn  conveyed  these  interests  to  Bolt- 
wood.  October  3,  1853,  the  entire  land  was 
sold  for  the  taxes  of  1851  and  1852.  Two 
deeds  were  issued  upon  these  sales  to  one 
Stevens,  who  on  July  2,  1S55,  conveyed  the 
interest  acquired  by  these  'deeds  to  ,JBall. 
Ball  conveyed  to  Yv'hite,  and  the  tax  titles 
passed  to  Boltwood  under  the  deed  from 
White  already  referred  to.  INIay  17,  1887, 
Boltwood  conveyed  to  James  B.  Judson.  In 
1886  Judson  purchased  the  interest  of  the 
two  remaining  heirs  of  Toussaint  L'Esper- 
ance. There  is  no  competent  evidence  that 
Meyers  ever  went  into  possession  of  the  land, 
or  was  inti'usted  with  its  care  and  super- 
vision, either  by  L'Esperance  or  his  widow. 
The  only  testimony  upon  this  subject  Is 
given  by  one  of  the  children  of  L'Esperance, 
who  testified  to  his  understanding  from  con- 
versations he  had  with  his  mother.  Such 
testimony  was  hearsay  and  incompetent. 
July  4,  1853,  Meyers  conveyed  the  entire  land 
to  one  John  Hanley  by  warranty  deed.     The 


land  was  tlien  in  the  state  of  nature,  except 
that  the  timber  had  been  removed,  and  was 
covered  with  water  and  willows.  Hanley 
immediately  M'ent  into  possession  with  his 
family,  drained  and  fenced  it,  and  the  follow- 
ing year  built  a  house,  barn,  and  other  build- 
ings upon  it,  and  continued  in  such  posses- 
sion iintil  he  conveyed  by  warranty  deed  to 
defendant.  Green,  October  13,  1879;  mean- 
while paying  tlie  taxes  and  cultivating  and 
improving  the  land.  Green  executed  a  war- 
ranty deed  to  plaintiff,  Watkins,  January  2, 
1881.  Green  occupied  the  land,  through  ten- 
ants, until  the  conveyance  to  plaintiff.  Mr. 
Judson  commenced  an  action  of  ejectment 
against  the  phrtntiff,  who  notified  defendant 
of  Judson's  claim,  and  demanded  that  he 
defend  the  suit.  This  defendant  refused, 
claiming  that  he  had  a  good  title  by  adverse 
possession.  Plaintiff  then  purchased  the  in- 
terests held  by  Judson,  and  brought  tliis  suit. 
The  court  below  dii-ected  a  verdict  for  the 
defendant,  holding:  '"(l)  That  John  Hanley 
went  into  possession  of  the  property  in  dis- 
pute under  a  claim  of  title,  i.  e.  the  Meyers 
tax  deeds  and  his  deed  from  Meyers,  and 
that  under  this  claim  he  held  an  open,  notori- 
ous, hostile,  distinct,  and  adverse  possession 
for  over  twenty  years.  (2)  That,  of  the  'pat- 
ent title,'  defendant  obtained  one-ninth  by 
his  deed  from  Meyers.  (3)  That  the  statute 
of  limitations  had  run  in  favor  of  Hanley 
and  his  successors,  against  the  widow,  as  to 
the  three-ninths  willed  to  the  widow  abso- 
lutely. (4)  That  there  was  a  merger  of  the 
life  estate  and  the  three-ninths  of  the  estate 
obtained  from  Enos,  Pliilip,  and  Chai'les, 
and  passing  to  Boltwood  on  June  12,  ISiX), 
and  that  the  statute  of  limitations  had  nm 
against  the  three-ninths,  in  favor  of  Hanley 
and  his  successors.  (5)  That  the  Sears  Stev- 
ens tax  titles  were  paramount  titles,  and, 
when  purchased  by  Ball,  extinguished  the 
two-ninths  of  the  patent  title  still  held  by 
Elizabeth  Crouch  and  Josephine  Page,  and 
the  right  of  entry  accrued  at  once  to  Bolt- 
wood,  and  that  the  statute  of  limitations  had 
run  against  the  entire  patent  title,  in  favor 
of  Hanley  and  his  successors.  (6)  That  the 
tax  titles  piu*chased  by  Meyers  were  para- 
mount to  the  title  of  the  cliildren  and  that 
of  the  widow,  and  that  Hanley's  possession 
under  the  paramount  title  extinguished  the 
title  of  the  widow  and  children  to  the  prop- 
erty in  question." 

George  W.  Radford  (Edward  A.  Barnes, 
of  counsel),  for  appellant  Jay  Fuller,  for 
appellee. 

GRANT,  J.  (after  stating  the  facts).  Mey- 
ers, at  the  time  of  the  purcha.se  of  his  one- 
ninth  interest  from  Edward  L'Esperance.  was 
not  in  possession,  nor  did  he  taJie  possession 
either  under  that  deed  or  his  tax  deeds.  He 
occupied  no  relation  of  trust  or  confidence 
towards  the  widow  and  the  heirs.  He  was 
iherofore  under  no  obligaliun  to  pay  tlieir 
taxes,  or  to  buy  up  outsuindiug  interests  or 


86 


ESTATES  IN  REAL  PROPERTY. 


titles  for  their  benefit.  Hanley  went  into 
possession  under  his  warranty  deed  from 
Meyers,  claiming  the  entire  title,  and  imder 
a  deed  which  purported  to  convey  the  entire 
and  absolute  fee.  It  cannot  be  said  that  he 
accepted  this  deed  charged  with  any  duty  to 
protect  the  life  estate,  or  the  undivided  in- 
terests of  any  of  the  tenants  in  common. 
Hanley's  possession  at  once  became  open,  no- 
torious, hostile,  and  exclusive  to  all  claiming 
any  interesjt  in  the  land.  That  possession 
continued  in  Hanley  and  his  grantees  for 
nearly  40  years,  and  more  than  20  years  after 
tlie  minor  children  became  of  age.  It  is  es- 
tablished in  this  state  that  one  who  purchases 
an  undivided  interest  in  lands,  and  enters  as 
a  stranger  to  the  rights  of  his  cotenant,  is  not 
estopped  fi-om  setting  up  against  them  an  ad- 
verse title  that  originated  before  his  purchase. 
Blackwood  v.  Van  Vleit,  30  Mich.  118;  Cam- 
pau  V.  Dubois,  39  Mich.  274;  Sands  v.  Davis, 
40  Mich.  14. 

Such  entry  operated  as  an  ouster  of  all 
those  having  an  interest  in  the  land  and  the 
right  of  entry.  The  widow  was  then  entitled 
to  the  possession  of  one-third  by  virtue  of  her 
one-third  ownership,  and  to  the  possession 
and  enjoyment  of  the  other  two-thirds  by  vir- 
tue of  her  life  estate.  Clearly,  therefore,  her 
acts,  and  those  of  her  grantee  of  these  two 
interests,  were  lost  by  adverse  possession,  and 
the  title  vested  in  the  defendant. 

AVhen  Ball  purchased  the  interest  of  the 
widow  and  one  of  the  children,  and  the  tax 
titles  for  the  taxes  of  1851  and  1S.")2,  which 
were  then  outstanding,  all  these  titles  be- 
came merged  in  him.  He  was  then  entitled 
to  possession,  as  against  Hanley.  The  right 
of  entry  became  complete,  and  the  statute  of 
limitations  began  to  run.  By  the  deed  from 
Ball  to  White,  dated  in  1856,  and  from  White 
to  Boltwood,  In  1857,  Boltwood  succeeded  to 


the  same  rights  and  interests,  and  was  en- 
titled to  possession.  Boltwood,  by  his  pur- 
chase of  the  interests  of  Enos  and  PJiihp  in 
1S5S,  became  possessed  of  the  entire  title,  in- 
cluding tlie  life  estate,  except  the  one-ninth 
purchased  by  Meyers  and  the  two-ninths  out- 
standing in  Josephine  and  Elizabeth.  He 
took  no  steps  to  enforce  his  rights,  and  the 
defendant,  by  the  adverse  possession  of  him- 
self and  his  grantors,  obtained  title  to  all  the 
interests  OTvned  by  Boltwood.  Boltwood,  be- 
ing the  owner  of  the  life  estate,  was  obli- 
gated to  pay  the  taxes,  and  protect  the  inter- 
ests of  the  remainder-men.  If  he  chose  to 
permit  Hanley  and  his  grantees  to  remain  in 
adverse  and  undistiu'bed  possession  till  such 
possession  ripened  into  a  vahd  title,  neither 
he  nor  his  grantees  can  now  separate  his  inter- 
ests, under  the  plea  that,  as  to  some  of  the 
interests,  he  had  not  the  right  of  entry. 

Josephine  and  EUzabeth,  or  their  grantees, 
acquired  no  right  of  entry  until  the  death'of 
then*  mother,  in  May,  1SS7,  when  the  life  es- 
tate terminated.  How.  St.  §  8700.  As  to 
these  interests,  therefore,  there  has  been  no 
adverse  holding,  so  as  to  convey  title.  Cook 
V.  Knowles,  38  Mich.  316;  Marble  v.  Price. 
54  Mich.  466,  20  N.  W.  531. 

If,  therefore,  the  tax  deeds  to  Meyers  are 
void,  there  was  a  breach  of  the  defendant's 
covenants  of  warranty,  for  which  the  plain- 
tiff Is  entitled  to  damages.  Of  course,  if  the 
tax  deeds  obtained  by  Meyers  are  valid,  they 
cut  off  the  entire  title  of  the  widow  and 
heirs.  Where  the  owner  of  the  life  estate 
neglects  to  pay  the  taxes  assessed  upon  the 
land,  and  they  are  sold  under  valid  taxes  and 
valid  proceedings,  title  passes  to  the  grantee, 
and  the  only  remedy  of  the  remainder-men  is 
against  the  life  owner.  Judgment  must  be 
reversed,  and  a  new  trial  ordered.  The  other 
justices  concurred. 


CONVEXTIOXAL  LIFE  ESTATES. 


87 


WOOSTER  V.  COOPER  et  al. 
(33  Atl.  1050,  53  N.  J.  Eq.  682.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
March  9,  1890. 

Appeal  from  court  of  chancery. 

Suit  by  Charles  I.  Woostor  aj^ainst  William 
T.  Cooper  and  others.  Decree  for  defendants, 
and  plaintiff  appeals.     Athrmed. 

John  W.  Wescott  and  John  J.  Crandall,  for 
appellant.  William  Moore  and  James  Buch- 
anan, for  respondents. 

GUMMEKE,  J.  Benjamin  D.  Cooper  died 
in  the  mouth  of  March,  1893,  having  made  his 
last  will  on  December  31,  1881,  by  which, 
among  other  things,  he  provided  as  follows: 
*'I  order  and  direct  that  all  my  estate,  real, 
personal,  and  mixed,  shall  during  the  life  of 
my  beloved  wife,  Tacy  Cooper,  should  she 
survive  me,  pass  into  her  hands,  and  be  sub- 
ject to  her  sole  management  and  control,  to 
keep  and  use  or  sell  and  dispose  of  the  same 
as  she  shall  see  fit;  and  my  executors  here- 
inafter named  shall  not,  during  said  time,  be 
responsible  therefor.  From  and  after  the 
death  of  my  wife,  should  she  survive  me, 
otherwise  from  and  after  my  death,  all  my 
estate,  real,  personal,  and  mixed,  which  shall 
then  remain,  1  order  and  direct  my  executors 
hereinafter  named,  or  the  survivor  of  them, 
to  dispose  of,  as  soon  as  conveniently  may  be 
thereafter,  as  follows."  The  will  then  directs 
a  conversion  of  the  estate  into  cash,  and  the 
distribution  thereof  among  the  respondents  in 
this  case.  Testator's  wife,  Tacy,  survived 
him,  and,  under  the  terms  of  his  will,  took 
possession  and  control  of  his  entire  estate, 
real  and  personal,  and  continued  to  possess 
and  enjoy  the  same  until  her  death,  which  oc- 
curred February  24,  1894.  Testator's  wife 
made  no  disposition  of  any  portion  of  her 
husband's  estate  during  her  lifetime,  but 
she  left  a  will  in  and  by  which,  after  di- 
recting the  payment  of  her  debts  and  fu- 
neral expenses,  she  gave,  bequeathed,  and  de- 
vised all  her  property,  both  real  and  per- 
sonal,   wherever    situate    and    whatever    the 


same  might  be,  to  her  nephew  Charles  I. 
Wooster,  the  appellant  in  this  case,  to  him 
and  his  heirs,  forever.  Under  this  last-men- 
tioned will,  tiie  appellant  claims  to  be  en- 
titled to  the  whole  of  the  estate  of  Benjamin 
D.  Cooper  which  was  in  the  possession  of 
his  wife,  Tacy,  at  her  death;  his  insistmeut 
being  that  she  was  the  absolute  owner  there- 
of by  the  terms  of  her  husband's  will,  be- 
cause there  was  coupled  with  the  devise  to 
her  an  absolute  and  unqualihed  power  to 
dispose  of  the  estate.  The  vice  chan- 
cellor, by  the  decree  appealed  from,  over- 
ruled this  claim,  and  held  that,  by  the  will  of 
her  husband,  Tacy  Cooper  took  only  a  life  in- 
terest in  his  estate,  and  that  at  her  death  so 
much  of  it  as  had  not  been  disposed  of  by  her 
in  her  lifetime  went  to  her  husband's  lega- 
tees. 

I  agree  with  the  learned  vice  chancellor  in 
this  construction  of  the  will  of  Benjamin  D. 
Cooper.  It  gives  to  his  wife,  by  express 
words,  a  life  estate  in  his  property,  and  then 
annexes  to  it  a  power  to  dispose  of  the  same 
without  qualification  or  limitation.  The  rule 
that  a  devise  of  an  estate  generally,  with  a 
power  to  dispose  of  the  same  absolutely  and 
without  limitation,  imports  such  dominion 
over  the  property  that  an  estate  in  fee  is 
created,  and  that  a  devise  over  is  consequent- 
ly void,  has  one  exception,  which  is  this: 
that  where  the  testator  gives  an  estate  for 
life  only,  by  certain  and  express  words,  and 
annexes  to  it  a  power  of  disposal,  the  dev- 
isee for  life  will  not  take  an  estate  in  fee. 
This  exception  was  recognized  and  enforced 
by  this  court  in  the  case  of  Downey  v.  Bor- 
den, 36  N.  J.  Law,  460,  and  again  in  the 
case  of  Pratt  v.  Douglas,  38  N.  J.  Eq.  533; 
and  in  the  latter  case  it  was  declared  to  ap- 
ply to  bequests  of  personal  estate  as  well  as 
to  devises  of  realty.  These  cases  have  defi- 
nitely settled  the  law  on  this  subject  in  New 
Jersey,  and  the  propriety  of  the  rule  laid 
down  in  them  is  no  longer  open  to  discussion. 
The  decree  of  the  court  of  chancery  should 
be  affirmed. 


88 


ESTATES  IN  REAL  PROPERTY, 


FOSTER  V.  HILDIARD  et  al. 

(Fed.  Gas.  No.  4,972,  1  Story,  77.) 

Circuit   Court,   D.   Massachusetts.      May  Term, 
1840. 

Mr.  Dehon,  for  plaintiff.  S.  Greenleaf,  for 
defendants. 

STORY,  Circuit  Justice.  Tlie  case  may  oe 
sliorKy  stated,  upon  wliich  the  arguments 
liave  been  addressed  to  the  court.  A  devise 
Avas  made  of  cei-tain  wild  and  uncultivated 
land  in  Maine  to  A.,  as  tenant  for  life,  re- 
mainder to  his  nephews,  who  were  minors, 
in  fee.  Aftgr  the  death  of  the  testator,  the 
tenant  for  life,  with  the  assent  of  the  guard- 
ian of  the  minors,  sold  the  land,  and  received 
a  part  of  the  pm-chase  money,  and  then  died, 
and  the  residue  of  the  purchase  money  has 
since  been  received  by  the  executors  of  the 
tenant  for  life.  The  minors  have  since  come 
of  age;  they  do  not  seek  to  distm-b  the  sale; 
but  they  claim  the  whole  purchase  money 
from  the  executors.  The  present  action  is 
brought  by  one  of  the  remainder  men,  to  re- 
cover his  share.  There  is  no  proof  of  any 
agreement  between  the  tenant  for  life  and  the 
guardian,  as  to  the  disti'ibution  or  division 
of  the  pm'chase  money  between  the  tenant 
for  life  and  the  remainder  men.  On  behalf 
of  the  remainder  men,  it  is  contended:  (1) 
That  the  purchase  money  is  to  be  treated  aa 
a  mere  substitute  for  the  land  on  the  sale; 
that  the  tenant  for  life  was  entitled  to  the 
income  thereof  dm'ing  his  life;  and  that  the 
whole  principal  now  belongs  to  them.  (2) 
That  if  they  are  not  so  entitled,  the  appor- 
tionment of  the  pm'chase  money  is  to  be  made 
between  them  and  the  executors,  not  accord- 
ing to  the  value  of  the  life  estate  of  the  ten- 
ant for  life,  according  to  the  common  annuity 
and  life  tables,  but  according  to  the  actual 
facts,  he  having  died  shortly  after  the  sale. 
On  the  other  hand,  the  executors  contend: 
(1)  That  the  tenant  for  life  was  entitled, 
and  tliey,  as  his  executors,  are  entitled,  to 
hold  so  much  of  the  pm-chase  money  as  the 
value  of  his  life  estate,  at  the  time  of  the  sale, 
bore  to  the  whole  interest  in  fee.  (2)  That 
the  apportionment  between  them  is  to  be  made 
according  to  the  value  calculated  by  the  com- 
mon annuity  and  life  tables,  at  the  time  of 
the  sale,  without  any  reference  to  the  actual 
duration  of  his  life.  It  is  admitted,  that  tliore 
is  no  case  exactly  in  point;  and,  perhaps, 
considering  the  frequency  of  sales  by  a  ten- 
ant for  life  and  a  remainder  man,  it  is  a  mat- 
ter of  some  sm'prise,  that  no  such  case  should 
be  found.  The  circmnstance,  however,  may  be 
reasonably  accounted  for,  either  upon  the 
ground,  that  the  sale  usually  takes  place  upon 
distinct  and  independent  bargains;  or,  where 
there  is  a  joint  bargain,  the  shai-es  of  the  re- 
spective parties  are  usually  ascertained  and 
apportioned  by  some  private  agreement 
Here,  no  such  agreement  can  be  ti'aced;  and 
the  sale  seems  to  have  proceeded  upon  a  mu- 
tual confidence,  that  the  proceeds  would  iilti- 
mately  be  divided  justly  and  equitably  be- 


tween the  parties,  according  to  their  respec- 
tive rights.  What  are  those  rights  ?  It  seems 
to  me,  that  when  a  sale  of  real  estate  is 
jointly  made  by  two  or  more  persons,  hav- 
ing independent  interests,  the  natm-al,  nay, 
the  necessary  conclusion,  in  the  absence  of 
all  other  countervailing  circumstances,  is,  that 
they  are  to  share  the  pm'chase  money  accord- 
ing to  their  respective  interests.  If  three 
tenants  in  common  should  jointly  sell  an  es- 
tate, they  would  certainly  be  entitled  to  share 
the  pm'chase  money  according  to  their  respec- 
tive undivided  interests.  If  one  held  a  moi- 
ety, and  the  others  one  quarter  part  each, 
they  would  share  in  the  like  proportions.  So, 
if  three  parceners  should  sell  an  estate,  they 
would  all  share  equally  in  the  purchase 
money.  What  difference  can  it  make,  wheth- 
er they  have  undivided  interests  in  the  fee, 
or  separate  interests,  carved  in  succession  out 
of  the  fee?  Whether  they  are  tenants  in  com- 
mon of  the  fee,  or  tenants  for  life,  and  re- 
mainder men  in  fee?  In  contemplation  of 
law,  in  each  case,  the  sale  is  a  sale  of  distinct 
and  independent  interests;  and  if  the  parties 
do  not  fix  the  amoimt  of  their  respective 
shares  iu  the  pm-chase  money  by  some  posi- 
tive agreement,  the  natural  <x)nclusion  is,  no* 
that  any  one  of  them  surrenders  his  right  to 
the  other,  but  that  they  silently  agree  to  ap- 
portion the  same  among  themselves  accord- 
ing to  their  respective  rights.  Now,  if  in  the 
present  rase,  the  tenant  for  life  had  sepa- 
rately sold  his  life  estate  to  the  purchaser, 
there  is  no  pretence  to  say,  that  he  would 
not  have  been  solely  entitled  to  the  principal 
of  the  purchase  money.  What  difference  can 
it  make,  except  as  to  the  means  of  ascertaining 
the  value  of  his  life  estate,  that  he  proceeds 
to  make  sale,  or  joins  in  a  sale  of  the  remain- 
der in  fee?  It  does  not  sti-ike  me,  that  there  is 
any.  Suppose  A.  and  B.,  the  several  owners 
of  two  adjoining  acres  of  land,  should  unite 
and  sell  them  both  in  one  deed,  to  a  purchaser 
for  a  gi'oss  consideration;  would  not  the  pur- 
chase money  be  divisible  between  them  ac- 
cording to  the  relative  value  of  the  two  acres? 
I  tliink  it  clearly  would. 

But  it  is  said,  that,  upon  the  sale,  the  pur- 
chase money  was  substituted  for  the  land, 
and  it  is  therefore  to  be  ti'eated  exactly,  as  if 
the  land  had  remained  in  the  parties;  and 
hence,  that  the  tenant  for  life  had  an  interest 
for  life  in  the  purchase  money,  that  is  in  its 
income,  and,  subject  thereto,  that  the  whole 
purchase  money  belonged  to  the  remainder 
men,  the  present  claimants.  Now,  this  is 
assuming  the  very  point  in  conti'oversy;  it 
is  stating  the  difficulty,  and  not  solving  it. 
When  a  sale  is  made,  the  ordinary  result  is, 
that  the  vendor  is  entitled  to  the  pm-chase 
money  itself,  and  not  merely  to  the  income 
thereof.  If  a  different  appropriation  takes 
place,  it  is  a  matter  of  private  agreement, 
and  not  an  inference  of  law.  If  (as  I  have 
already  suggested)  a  tenant  for  life  of  land 
sells  his  life  estate,  he  has  a  title  to  the  whole 
purchase  money,  and  not  merely  to  the  in- 
come thereof.    He  sells  his  own  estate,  and 


INCUMBRANCES. 


8y 


lie  is  entitled  to  its  full  value  at  tlie  time  of 
the  sale.  Thou,  how  stands  the  law  in  cases, 
bearing  a  close  analogy.  Suppose  the  case  of 
a  tenant  for  life,  remainder  in  fee,  of  lands 
under  mortgage,  in  what  manner  do  the  par- 
ties contribute  to  the  discharge  of  the  in- 
cumbrance? Exactly,  as  we  all  know,  ac- 
cording to  the  relative  value  of  their  re- 
spective interests  in  the  land,  calculated  ac- 
cording to  the  value  of  the  estate  of  the 
tenant  for  life,  by  the  common  tables.  I 
need  not  cite  authorities  to  this  point;  they 
are  familiar  to  the  profession.  See  1  Story, 
Eq.  Jur.  §  487,  where  many  of  the  authorities 
are  collected;  1  Pow.  Mortg.  (by  Coventry 
&  Rand)  312,  note  M;    Id.  314,  in  note  Q.; 

3  Pow.  Mortg.  (by  the  same)  920,  923,  note 
H;  Id.  1043,  note  O.  The  rule  is  founded 
upon  the  obvious  equity,  that  every  one  of  the 
parties  in  interest  shall  contribute  in  propor- 
tion to  the  benefit,  which  ho  derives  from 
the  discharge  of  the  incumbrance.  The  same 
principle  applies  to  the  case  of  a  sale.  Each 
party  is  to  participate  in  the  pm'chase  money, 
in  proportion  to  the  beneficial  interest  he  has 
in  the  land.  The  same  principle  applies, 
where  a  mortgagee  devises  the  mortgaged 
estate  to  one  for  life,  remainder  over  in  fee; 
the  tenant  for  life  and  the  remainder  man 
share  the  mortgage  money,  if  paid  by  the 
mortgagor  during  their  lives,  according  to 
the  value  of  their  respective  interests  at  the 
time  of  the  payment.  See  1  Story,  Eq.  Jm*.  § 
485,  and  note;  3  Pow.  Mortg.  (by  Coventry 
&  Rand)  1043,  note  O.  This  was  Indirectly 
admitted  in  Brent  v.  Best,  1  Vern.  G9;  and 
directly  held  in  Thynn  v.  Duvall,  2  Yern.  117. 
That  is  certainly  a  case  nearly  approaching 
the  present,  where  it  might  have  been  said, 
that  the  devisee  for  life  of  the  mortgagee  ought 
to  be  entitled  only  to  the  interest  for  life,  and 
to  no  part  of  the  principal.  A  doctrine  some- 
what different  was  asserted  in  the  case  of 
Lord  Penrhyn  v.  Hughes,  5  Ves.  99, 107,  where 
the  master  of  the  rolls  said,  that  where  there 
is  a  tenant  for  life  and  remainder  men,  en- 
titled to  an  estate  under  incumbrances,  the 
tenant  for  life  and  the  incumbrancers  have 
a  right  to  have  the  estate  sold  to  discharge 
the  incumbrances,  and  the  sm-plus  of  money, 
after  discharging  the  incumbrances,  is  to  be 
divided  between  the  parties,  in  the  propor- 
tion, that  their  interests  bear  to  the  estate; 
that  is,  as  the  master  of  the  rolls  afterwards 
explained,  by  putting  the  whole  out  at  in- 
terest, and  allowing  the  tenant  the  interest 
for  his  life.    See  White  v.  White,  9  Ves.  554, 

4  Ves.  33;  3  Pow.  Mortg.  1043,  note  O.  It  is 
not,  perhaps,  very  easy  to  see  the  reason  of 
this  particular  docti'ine.  It  may  be,  that  the 
tenant  for  life  shall  not,  by  his  own  act,  com- 
pel the  remainder  men  to  submit  to  a  sale,  by 
which  his  interest  in  the  remainder  may  be 
materially  affected  without  his  consent.  But 
that  case  is  unlike  the  present,  whore  there  is 
a  voluntary  joinder  in  the  sale,  or  a  con- 
firmation of  it.  A  court  of  equity  may  well 
decline  to  interfere  in  adversum  to  change 
■real  estate,  by  a  sale,   into  personal  estate, 


without  imposing  conditions,  by  which  the 
proceeds  shall  retain  throughout  the  charac- 
ter of  the  original  fimd,  when  it  might  not  aet 
in  the  same  manner,  where  there  had  been 
a  volimtary  sale  by  the  parties.  The  distinc- 
tion is  often  acted  on  in  courts  of  equitj'. 
See  Story,  Eq.  Jm-.  §  13.j7.  In  the  case  of 
Houghton  V.  Hapgood,  13  Pick.  154,  as  far  as 
I  am  able  to  gather  from  the  report,  (which, 
on  this  point,  may  be  thought  somewhat  in- 
determinate,) a  tenant  by  the  curtesy  of  his 
wife's  estate,  which  was  sold  by  an  executor 
improperly,  but  the  sale  was  afterwards  con- 
firmed both  by  himself  and  by  her  heirs,  was 
held  entitled  to  share  in  the  proceeds  accord- 
ing to  the  value  of  his  life  estate,  as  tenant 
by  the  curtesy,  calculated  by  the  common 
tables  of  life  annuities.  If  I  take  a  right 
view  of  that  case,  it  is  in  exact  coincidence 
with  the  opinion,  which  I  hold  in  the  present 
case. 

It  appears  to  me,  that  the  sale  in  the  pres- 
ent case,  having  been  confirmed  and  adopted 
by  all  the  parties  in  interest,  must  be  treated 
in  the  same  way  and  manner,  and  have  tho 
same  effect,  as  if  it  had  been  originally  made 
by  the  consent  of  all  the  parties  in  interest, 
and  all  of  them  were  then  competent  to  make 
the  sale;  and  that  the  rights  of  all  the  par- 
ties were  fixed  at  that  time.  And  this  leads 
me  to  say  a  few  words  on  the  second  point, 
made  at  the  bar,  as  to  the  rule  of  apportion- 
ment. I  think  it  must  be  according  to  the 
value  of  the  life  of  the  tenant  for  life  at  the 
time  of  the  sale,  calculated  according  to  the 
common  tables.  If  I  am  right  in  the  opinion 
ah'eady  stated,  that  the  rights  of  tho  parties 
were  absolutely  fixed  at  the  very  time  of  the 
sale,  then  it  follows,  as  a  necessary  conse- 
quence, that  they  are  entitled  to  share  in  the 
proceeds  according  to  the  relative  values  of 
their  respective  interests  in  the  estate  at  the 
time  of  the  sale.  The  case  of  Clyat  v.  Batte- 
son,  1  Vern.  404,  is  not  opposed  to  this  doc- 
trine. In  that  case  lands  in  mortgage  were 
devised  to  A.  for  life,  remainder  to  B.  in  fee. 
B.  bought  up  the  mortgage,  taking  an  as- 
signment thereof  in  the  name  of  tinistees.  A. 
died;  and  then  B.,  the  remainder  man, 
brought  a  suit  against  the  defendant,  who 
was  the  representative  of  A.,  to  redeem  the 
mortgage,  and  insisted,  that  the  repi-esenta- 
tive  ought  to  pay  one  third  of  the  mortgage 
money,  paid  by  B.,  by  reason,  that  A.  en- 
joyed the  profits  during  his  life.  The  court 
held,  that  if  B.  had  brought  the  bill  in  A.'s 
lifetime,  he  would  have  been  entitled  to  the 
proportion  of  the  money  according  to  the 
value  of  the  respective  estates  of  the  tenant 
for  life  and  the  remainder  man  (that  is,  ac- 
cording to  the  old  rule,  now  exploded,  to  one 
third);  but  that  A.  being  dead,  and  having 
enjoyed  the  estate  but  one  year  only,  the  rep- 
resentative was  bound  only  to  allow  for  the 
time  A.  enjoyed  the  estate.  This  decision 
turned,  therefore,  upon  the  very  point  of  the 
value  of  the  estates  of  the  tenant  for  life  and 
the  remainder  man  at  the  time,  when  the 
parties  were  charged  with  the  payment  of 


90 


ESTATES  IN  REAL  PROPERTY. 


the  money.  But  when  the  tenant  for  life 
sells  his  life  estate,  he  sells  it  for  what  it  is 
then  worth,  and  of  course  his  share  of  the 
purchase  money  does  not  depend  upon  the 
f utm-e  event  of  his  life  or  death,  but  upon  its 
present  value.  It  sti-ikes  me,  therefore,  that 
the  true  rule  in  the  present  case  is  to  appor- 
tion the  purchase  money  between  the  tenant 
for  life  and  the  remainder  men,  according  to 
I  the  relative  values  of  their  respective  estates 
\n  the  land  f^t  the  time  of  the  sale,  unaffect- 
ed-by  thefHl)sequent  events.  It  is  said,  that 
the  duration  of  the  life  of  the  tenant  for  life, 
calculated  according  to  the  common  tables, 
was  over  twenty  years,  whereas  he  died  in  a 
little  less  than  four  years  after  the  sale.  Bo 
it  so.  The  event  has  tin-ned  out  unfavorably 
for  the  remainder  men,— as  contingent  events 
sometimes  do.  But  the  tenant  for  life  might 
have  lived  thirty  years,  and  then  the  appor- 
tionment would  have  been  favorable  to  them. 
The  fact,  therefore,  does  not  shake  the  pro- 
priety of  the  rule  of  apportionment;  but  it 
only  shows,  that  it  has  the  common  elements 


of  uncertainty  belonging  to  all  calculations  of 
contingencies.  A  tenant  for  life  of  a  mort- 
gaged estate  may  die  within  a  year  after  he 
has  been  compelled  to  pay  one  third  part  of 
the  mortgage  money  upon  a  decree  for  re- 
demption, his  life  having  been  calculated  as 
worth  that  proportion  of  the  money.  He 
may,  on  the  other  hand,  live  far  beyond  the 
period  of  average  life.  Yet  this  inequality 
has  never  been  supposed  to  justify  any  de- 
parture from  the  general  rule  of  conU'ibution. 
In  the  view,  which  I  take  of  the  case,  the 
other  points  made  at  the  bar  are  not  material 
to  be  discussed.  I  think,  that  the  remainder 
men  are  entitled  to  their  proportion  of  the 
pui'chase  money,  according  to  the  relative 
value  of  the  life  estate,  and  the  remainder  at 
the  time  of  the  sale;  that  the  executors  are 
liable  for  this  amount  to  the  remainder  men, 
and  that,  upon  so  much  of  the  money  as 
either  the  tenant  for  life  or  the  executors 
have  received  interest,  they  are  entitled  to 
receive  their  proportionate  share  of  the  inter- 
est. 


ESTATES   PER   AUTRE    VIE. 


:i 


MOSHER  et  al.  t.  YOST  et  al. 

(33  Barb.   277.) 

Supreme  Court  of  New  York,  General  Term. 
Jan.   1,  18G1. 

Action  for  the  recovery  of  certain  real  es- 
tate and  for  damages  for  withholding  the 
same.  The  answer  was  a  general  denial. 
Plaintiff  gave  in  evidence  a  lease  and  divers 
assignments  vesting  the  title  in  one  James 
Mantany,  who  died  in  1857,  in  possession  of 
the  premises.  Deceased  left  a  will,  which 
was  never  admitted  to  probate,  but  was  de- 
clared invalid  by  the  surrogate.  Letters  of 
administration  were  issued.  A  son,  after  the 
death  of  his  father,  claimed  to  be  the  owner 
of  his  farm  by  gift  from  the  father,  and  sold 
his  interest  therein  to  defendant's  assignee, 
at  the  same  time  transferring  the  lease  to 
them.  Plaintiffs  claimed  under  the  assign- 
ment of  a  lease  from  the  administratrix  of 
the  decedent.  The  defendants  took  posses- 
sion. Judgment  was  rendered  for  the  plain- 
tiffs for  possession  of  the  property  and  for 
mesne  profits.     The  defendants  appeal. 

Before  ROSEKRANS,  POTTER,  and 
BOCKES,  Justices. 

W.  Higbie  and  H.  Link,  for  appellants. 
Hardin  &  Bun-ows,  for  respondents. 

ROSEKRANS,  J.  We  need  not  discuss 
the  question  whether  the  instrument  signed 
by  Lois  Mantany,  in  form,  passed  to  the 
plaintiff  the  title  to  the  land  and  lease  under 
which  the  farm  was  held,  the  possession  of 
which  is  the  subject  of  this  action.  Conced- 
ing that  it  did,  the  deed  of  Mrs.  Mantany 
was  clearly  void  upon  the  ground  that  the 
premises  in  question  were,  at  the  date  of 
that  deed,  in  the  actual  possession  of  the  de- 
fendants claiming  title  under  an  assignment 
of  the  lease  from  WiUiam  Mantany.  The 
estate  of  the  original  lessees  was  a  freehold 
estate,  it  being  for  their  lives.  1  Rev.  St. 
^,  p.  722,  §  5.  These  lessees  were  still  in  life. 
By  the  assignment  or  conveyance  of  that 
lease  the  assignee  or  grantee  became  the 
owner  of  the  lands,  and  held  an  estate  dur- 
ing the  life  of  another.  This  was  the  nature 
of  the  estate  which  James^  Mantany  held  at 
the  time  of  his  death.  The  statute  declares 
that  it  was  a  freehold  estate  during  his  life, 
but  that  after  his  death  it  became  a  chattel 
real.  1  Rev.  St.  p.  723,  §  6.  This  estate 
passed  as  assets  to  the  administratoi*s  of  his 
estate.  2  Rev.  St.  p.  83,  §  G.  At  common 
law,  if  a  man  had  an  estate  granted  to  him 
(without  naming  his  heirs)  for  the  life  of  an- 
other, and  died  diu-ing  the  life  of  him  by 
whose  life  it  was  holden,  any  one  who  could 
first  enter  on  the  land  might  lawfully  retain 
it,  so  long  as  the  cestui  que  vie  lived,  by  right 
of  occupancy.  The  land  did  not  revert  to 
the  grantor,  for  he  had  parted  with  all  his 
interest  so  long  as  the  one  by  whose  life  it 
was  holden  lived;  it  did  not  escheat  to  the 
lord  of  the  fee.  for  all  escheats  must  be  of 
the  absolute  entire  fee  and  not  of  any  par- 


ticular estate  carved  out  of  it;  and  it  did 
not  belong  to  the  grantee,  for  he  was  dead. 
It  did  not  descend  to  the  heirs  of  the  gran- 
tee, for  there  were  no  words  of  inheritance 
in  the  grant;  nor  could  it  vest  in  his  exec- 
utors, for  no  executor  could  succeed  to  a 
freehold.  And  if  an  estate  for  the  life  of  an- 
other was  granted  to  a  man  and  his  heirs, 
and  the  grantee  died,  his  heir  might  enter 
and  hold  possession,  and  was  called  a  spe- 
cial occupant  as  having  a  special  exclusive 
right,  by  the  terms  of  the  gi-ant,  to  enter 
upon  and  hold  the  land.  The  heir  was  not 
regarded  as  taking  by  descent,  and  if  sued 
upon  the  bond  of  his  ancestor  he  could  plead 
riens  per  descent,  as  these  estates  were  not 
liable  to  the  debt  of  the  ancestor.  To  rem- 
edy these  evils  the  statute  of  29  Car.  II.  en- 
acted that  sucli  estate  pour  autre  vie  should 
be  devisable,  and  in  case  no  devise  thereof 
should  be  made,  the  same  should  be  charge- 
able in  the  hands  of  the  heir  if  it  came  to 
him  by  reason  of  a  special  occupancy  as  as- 
sets, by  descent,  as  in  case  of  lands  in  fee 
simple,  and  in  case  there  was  no  special  oc- 
cupant thereof,  it  should  go  to  the  executors 
and  administrators  of  the  party  who  had  the 
estate  by  virtue  of  the  grant,  and  be  assets 
in  their  hands  for  the  payment  of  debts.  2 
Bl.  Comm.  258,  etc.,  and  notes;  Williams. 
Ex'rs,  1-69;  4  Kent,  Comm.  26.  This  stat- 
ute was  enacted  in  this  state,  leaving  out  the 
provision  of  the  act  of  29  Car.  II.  as  to  the 
special  occupant.  1  Rev.  Laws,  p.  365,  §  4. 
It  directed  that  the  estate,  if  not  devised, 
should  go  to  the  executors  and  administi'a- 
tors  of  the  party  who  had  the  estate,  to  be 
applied  and  disti'ibuted  as  part  of  the  per- 
sonal estate.  The  only  object  of  these  stat- 
utes was  to  prevent  the  land  being  taken  by 
a  special  occupant  who  could  not  be  made 
liable  for  the  value  of  the  land  as  heir,  in 
payment  of  the  debts  of  his  ancestor,  and  to 
provide  for  the  application  of  the  estate  to 
the  payment  of  the  debts  of  the  one  who 
held  the  estate,  or  the  distribution  of  it 
amongst  his  next  of  kin.  They  did  not  de- 
stroy the  estate,  nor  were  they  designed  to 
have  that  effect.  It  is  a  maxim  in  law  that 
an  estate  which  once  existed  must  continue 
to  reside  somewhere.  It  cannot  be  anni- 
hilated. Livingston  v.  Proseus,  2  HiU,  529. 
The  latter  part  of  the  provision  of  the  re- 
vised statute,  (1  Rev.  St.  p.  722,  §  6,)  "that 
an  estate  dm'ing  the  life  of  a  third  person, 
whether  limited  to  heirs  or  otherwise,  shall 
be  deemed  a  freehold  only  during  the  life 
of  the  grantee  or  devisee,  but  after  his  death 
it  shall  be  deemed  a  chattel  real,"  could  only 
have  been  adopted  to  characterize  the  estate 
for  the  purpose  of  passing  it  to  the  executor 
or  administrator  of  the  testator  or  intestate. 
Clearly  it  must  have  been  intended  that  the 
whole  estate  should  pass  to  such  executors 
or  administrators,  and  after  it  came  to  the 
executors  or  administrators  it  would  still 
be  an  estate  for  the  life  of  another,  and  so 
a   freehold   estate.     In  Doe   ex  dem.   Blake 


92 


ESTATES  IN  REAL  PROPERTY. 


V.  Luxton,  6  Term  R.  291,  Lord  Kenyon 
says:  "An  estate  per  autre  vie  partakes 
somewhat  of  the  nature  of  personal  estate, 
though  it  is  not  a  chattel  interest.  It  still 
remains  a  freehold  interest  for  many  pur- 
poses, such  as  giving  a  qualification  to  vote 
for  members  of  parliament,  and  kill  game, 
and  some  others.  A  will  to  dispose  of  it 
must  always  be  attested  by  these  witnesses, 
under  the  statute  of  frauds."  And  in  3 
Russ.  230,  it  was  held  that  such  an  estate 
was  a  perfect  freehold,  even  in  the  hands  of 
the  executors  of  the  former  owner  of  the  es- 
tate. Chancellor  Kent  says,  in  4  Kent, 
Comm.  27,  such  an  estate  "is  a  freehold  in- 
terest sub  modo,  or  for  certain  purposes, 
though  in  other  respects  it  partakes  of  the 
nature  of  personal  estate."  In  the  hands  of 
the  grantee  of  the  executor  or  administrator 
it  was  the  same  freehold  estate.  This  was 
held  in  the  case  of  Roseboom  v.  Van  Vech- 
ten,  5  Denio,  424-426. .  A  freehold  estate  can 
only  be  conveyed  by  deed.  1  Rev.  St.  p. 
738,  §  137;  Watk.  Con  v.  31.  The  referee 
finds,  and  concedes  in  his  opinion,  that  at 
the  date  of  the  conveyance  by  Mrs.  Mantany 
to  the  plaintiff,  the  defendants  were  in  ac- 
tual possession  of  the  lands,  claiming  title 
under  the  assignment  of  the  lease  from  Wil- 
liam Mantany.  The  claim  of  the  defendants, 
therefore,  was  of  a  freehold  estate.  To  con- 
stitute an  adverse  possession  it  is  not  neces- 
sary that  the  title  under  which  the  party 
claims  should  be  a  good  one,  but  simply  that 
he  should  enter  under  color  and  claim  of 
title  exclusive  of  any  other  right.  Rose- 
boom  V.  Van  Vechten,  5  Denio,  426;  Liv- 
ingston V.  Piru  Iron  Co.,  9  Wend.  517.     The 


possession  must  be  adverse  to  the  one  who 
is  entitled  to  the  possession.  Clarke  v. 
Hughes,  13  Barb.  147;  Vrooman  v.  Shep- 
herd, 14  Barb.  450,  and  authority  cited.  If 
a  lessee  for  life  or  years  be  ousted  of  the 
land  by  a  stranger,  and  after  ouster  and  be- 
fore his  entry  he  surrenders  to  his  lessor,  it 
is  not  a  good  surrender,  for  he  has  but  a 
right,  at  the  time  of  the  surrender.  Perk. 
§  600.  In  the  case  cited  last  above,  (14  Barb. 
453,)  Hand,  J.,  says:  "When  the  lessee  for 
life  is  disseised,  the  rule  in  relation  to  sur- 
renders prevails,  and  his  conveyance  is  clear- 
ly void  as  a  surrender."  The  same  rule  pre- 
vails as  to  a  grant  to  any  other  person  than 
the  lessor.  The  learned  referee  seemed  to 
think  that  the  administrators  of  James  Man- 
tany could  not  have  maintained  ejectment 
against  the  grantee^  of  WiUiam  Mantany. 
In  this  he  is  clearly  mistaken.  They  had 
an  estate  in  the  land,  and  were  entitled  to 
the  possession;  and  this  is  all  that  is  neces- 
sary to  maintain  ejectment.  An  executor 
may  maintain  ejectment  when  the  testator 
had  a  lease  for  years,  or  from  year  to  year, 
upon  an  ouster  after  his  death.  Williams. 
Ex'rs,  748;  Slade's  Case,  4  Coke,  95;  Mo- 
reron's  Case,  1  Vent.  30;  Doe  v.  Porter,  3 
Term  R.  13;  Rose.  Act.  545;  Doe  v.  Brad- 
bury, 16  E.  C.  L.  115.  The  action  should 
have  been  brought  in  the  name  of  the  ad- 
ministrators of  James  Mantany.  Livingston 
V.  Proseus,  2  Hill.  529.  For  these  reasons 
the  judgment  should  be  reversed,  and  a  new 
trial  granted,  with  costs  to  abide  the  event. 


POTTER,  J.,  concm-red. 
sented. 


BOCKES,  J.,  dis 


CUliTESY. 


93 


BARR  V.  GALLOWAY. 

(Fed.   Cas.  No.   1,037,  1   McLean,  476.) 

Circuit  Court,  D.  Ohio.     July  Term,  1839. 

At  law. 

Scott  &  Leonard,  for  plaintiff. 
Stansbury  &  Bond,  for  defendant, 

OPINION  OF  THE  COURT.  The  plain- 
tiff LOavid  Barr's  lessee]  gave  in  evidence 
a  patent  from  the  United  States  to  Charles 
Bradford  for  the  land  in  controversy,  dated 
the  lith  May,  1790.  The  patentee  died  with- 
out issue,  leaving  Henry  G.  Bradford,  Charles 
H.  Bradford,  Elizabeth  J.  Bradford,  and 
Fielding  M.  Bradford  his  heirs  at  law.  Hen- 
ry and  Charles  died  intestate  and  without 
issue.  Elizabeth  intermarried  ■nith  John  Fin- 
ley.  They  had  two  children,  Henry  Heath 
Finley  and  Elizabeth  J.  Finlej\  The  latter 
intermarried  with  David  Barr,  the  lessor  of 
the  plaintiff,  and  is  now  deceased.  The 
plaintiff  also  gave  in  evidence  a  deed  to  him 
for  the  land  from  Heniy  Heath  Finley,  and 
here  he  rested  his  case. 

The  defendant  [.Tames  Galloway,  Jr.,]  gave 
a  deed  for  the  land  in  evidence  from  Fielding 
M.  Bradford  and  John  Finley,  the  husband 
of  Elizabeth  J.  Bradford,  and  father  of  Hen- 
ry Heath  Finley,  and  of  the  wife  of  the 
lessor  of  the  plaintiff;  which  was  executed 
the  29th  November,  181.5.  The  wife  of  the 
gi'antor  John  Finley,  died  before  the  execu- 
tion of  this  deed.  Possession  was  taken  by 
the  defendant  a  short  time  after  the  date  of 
this  deed,  and  there  is  no  proof  of  a  prior 
possession. 

In  the  argument  of  the  case  it  was  insisted, 
that  no  Interest  passed  under  the  deed  from 
John  Finley  to  the  defendant;  as  it  was 
made  subsequent  to  the  death  of  his  wife, 
and  there  is  no  evidence  of  actual  seisin, 
which  is  necessary  to  be  shown  bj'  the  hus- 
band to  enable  him  to  claim  the  land  con- 
veyed, as  tenant  by  the  curtesy.  And  it  is 
also  insisted  by  the  plaintiff,  if  seisin  in  fact, 
by  the  husband,  during  the  life  of  his  wife, 
were  not  necessary,  yet  it  is  incumbent  to 
show  that  at  the  time  of  the  conveyance 
there  was  no  adverse  possession. 

Before  deeds  or  feoffments  were  used  for 
the  conveyance  of  land,  livery  of  seisin  was 
the  only  evidence  of  title.  And  this  livery 
was  required  to  be  made  by  entering  upon 
the  land,  and  there  in  the  presence  of  the 
vicinage  to  deliver  the  possession.  The  no- 
toriety of  the  act  afforded  the  only  evidence 
of  title,  for  the  whole  rested  in  the  mem- 
ory of  the  witnesses,  called  to  observe  the 
ceremony.  And  after  the  invention  of  deeds 
and  other  written  evidence  of  title,  the  an- 
cient principles  of  the  common  law  were 
only  departed  from  so  far  as  to  consider  the 
instrument,  not  as  the  title  itself,  but  as  the 
evidence  of  title.  And  that  it  authorized  an 
entry  on  the  land,  without  which  the  gi-antee 
could   not   convey    the   land,    nor   bring   an 


action  against  a  trespasser.  Nor  would  it  de- 
scend to  his  heirs  on  his  decease.  Without 
an  entry,  except  in  cases  which  shall  be 
hereafter  noticed,  he  could  not  bring  an  ac- 
tion on  the  title  of  the  land.  1  Co.  Litt.  p. 
29,  c.  4,  §  35.  "Tenant,  by  the  curtesy  of 
England,  is,  where  a  man  taketh  a  wife 
seised  in  fee  simple,  or  in  fee  tail  general,  or 
seised  as  heir  in  tail  special  and  hath  issue 
by  the  same  wife,  male  or  female  born  alive, 
albeit  the  issue  after  dieth  or  liveth,  yet  if 
the  wife  dies,  the  husband  shall  hold  the  land 
during  his  life  by  the  laws  of  England." 
"And  first  of  what  seisin  a  man  shall  be 
tenant  by  the  curtesy.  There  is  in  law  a 
twofold  seisin,  viz:  a  seisin  in  deed,  and  a 
seisin  in  law.  And  here  Littleton  intendeth 
a  seisin  in  deed,  if  it  may  be  attained  iinto, 
as  if  a  man  dleth  seised  of  lands  in  fee 
simple  or  fee  tail  general,  and  these  lands 
descend  to  his  daughter,  and  she  taketh  a 
husband  and  hath  issue  and  dieth  before  any 
entry,  the  husband  shall  not  be  tenant  by 
the  curtesy;  and  yet  in  this  case  she  had  a 
seisin  in  law;  but  if  she  or  her  husband  had 
during  her  life  entered  he  should  have  been 
tenant  by  the  curtesy."  "But  if  a  man  seised 
of  an  advowson  or  rent  in  fee  hath  issue  a 
daughter  who  is  mari'ied  and  hath  issue  and 
dieth  seised,  the  wife,  before  the  rent  became 
due,  or  the  church  became  void,  dieth,  she 
had  but  a  seisin  in  law,  and  yet  she  shall  be 
tenant  by  the  curtesy,  because  she  coiild  by 
no  means  obtain  to  any  other  seisin.  But  a 
man  shall  not  be  tenant  by  the  curtesy  of  a 
base  right,  title,  use,  or  of  a  reversion  or 
remainder  expectant  upon  an  estate  of  free- 
hold, unless  the  particular  estate  be  deter- 
mined or  ended  dm-ing  the  coverture."  1 
Coke,  123.  By  the  common  law  lands  or  ten- 
ements cannot  pa.ss  but  by  solemn  livery, 
or  matter  of  record,  or  by  sufficient  writing, 
if  the  thing  lies  in  grant. 

The  wife  at  common  law  was  endowable 
where  there  had  been  no  actual  possession, 
and  the  reason  is,  that  during  coverture  she 
could  not  take  possession  of  the  lands  of  her 
husband.  2  Co.  Litt.  p.  358,  §  GSl.  "For 
tenant  in  freehold  in  land  is  he  who,  if  he 
be  deprived  of  the  freehold,  may  have  an 
ass'ize,  but  tenant  in  freehold  in  law  before 
his  entry,  in  deed  shall  not  have  an  assize. 
And  if  a  man  be  seised  of  certain  land,  and 
hath  issue,  a  son  who  taketh  wife  and  the 
father  dieth  seised,  and  after  the  son  dies 
before  any  entry  made  by  him  into  the  land, 
the  wife  of  the  son  shall  be  endowed  in  the 
land,  and  yet  he  had  no  freehold  in  deed, 
but  he  had  a  fee  and  freehold  in  law." 

Under  the  common  law,  actual  seisin  was 
necessary,  to  enable  the  husband  to  claim 
as  tenant  by  the  curtesy.  But  this  iiile  was 
not  inflexible.  It  yielded  to  circumstances, 
as  in  the  case  of  an  advowson  or  rent,  or 
where  an  entry  is  prevented  by  force.  2  Co. 
Litt.  §§  417,  418.  In  like  manner  if  a  man 
have  a  title  of  enti-y  into  lands,  but  dare  not 
enter  for  fear  of  bodily  harm,  and  he  ap- 
proach as  near  the  laud  as  he  dare,  and  claim 


94 


ESTATES  IN  JREAL  PROPERTY. 


the  land  as  his  own,  he  hath  presently,  by 
such  claim,  a  possession  and  seisin  in  the 
lands,  as  well  as  if  he  had  entered  in  deed. 
2  Co.  Litt.  §  419.  And,  under  some  circum- 
stances, living  within  view  of  the  land,  will 
give  the  feoffee  a  seisin  in  deed,  as  fully  as 
if  he  had  made  an  entry.  1  Co.  Litt.  p.  29, 
c.  4,  §  35.  If  an  estate  of  freehold  in  seign- 
ories,  rents,  commons,  or  such  like,  be  sus- 
pended, a  man  shall  not  be  tenant  by  the 
curtesy,  but  if  the  suspension  be  but  for 
years,  he  shall  be  tenant  by  the  curtesy. 
As  if  a  tenant  make  a  lease  for  life  of 
the  tenancy  to  the  seignories  who  taketh 
a  husband  and  hath  issue,  the  wife  dieth, 
he  shall  not  be  tenant  by  the  curtesy, 
but  if  the  lease  had  been  but  for  years  he 
shall  be  tenant  by  the  curtesy.  And  in  3 
Atk.  436,  the  court  say,  lands  on  which  there 
were  leases  for  years  existing  and  a  rent  in- 
curred, descended  on  a  wife  as  tenant  in  tail 
general,  who  survived  three  months  after 
the  rent  day  occurred,  though  she  made  no 
entry,  nor  received  any  rent  during  her  life, 
yet  this  was  such  a  possession  in  the  wife  as 
"made  the  husband  tenant  by  the  curtesy. 
In  Barwick's  Case,  5  Coke,  94,  it  was  held 
that  letters  patent  under  the  gi'cat  seal,  do 
amoimt  to  a  livery  in  law,  and  must  give 
actual  seisin.  As  where  a  livery  is  made 
of  one  parcel  of  land  in  the  name  of  others 
in  the  same  vicinity. 

No  livery  of  seisin  is  necessai'y  to  perfect 
a  title  by  letters  patent.  The  grantee  in 
such  a  case  takes  by  matter  of  record  and 
the  law  deems  the  grant  of  record  of  equal 
notoriety  with  an  actual  tradition  of  the 
land  in  the  view  of  the  vicinage.  The  con- 
trary is  the  fact  as  to  feoffments.  The  deed 
is  inoperative  without  livery  of  seisin.  Green 
V.  Liter,  8  Cranch,  [12  U.  S.]  229. 

A  perception  of  the  profits,  or,  in  more 
technical  language,  a  taking  of  the  esplees 
is  evidence  of  seisin,  but  if  seisin  be  estab- 
lished, this  is  presumed.  Under  the  statute 
of  uses  the  bargainee  without  entry  or  livery 
of  seisin,  has  a  complete  seisin  in  deed. 
Harg.  Co.  Litt.  261,  note.  In  most  of  the 
states  of  the  Union  statutes  have  been  adopt- 
ed, if  not  in  the  same  language,  to  the  same 
effect,  as  the  statute  of  uses.  The  delivery 
of  the  deed  is  substituted  for  the  ancient 
form  of  livery  of  seisin.  And  this  is  held  to 
be  a  seisin  in  deed,  where  there  is  no  adverse 
possession  at  the  time. 

The  question  in  the  present  case  is,  whether 
wild  and  unappropriated  lands,  patented  by 
the  government,  can  descend,  to  a  female  out 
of  possession  so  as  to  invest  her  husband, 
after  her  decease,  with  a  tenancy  by  the  cur- 
tesy, where  there  was  no  entry  diuiug  cover- 
ture, either  by  the  wife  or  husband.  The 
reason  on  which  livery  of  seisin  was  insti- 
tuted, fails  in  this  case.  And  it  is  a  sound 
maxim  that  where  the  reason  of  the  rule  fails 
the  rule  itself  can  have  no  application.  Why 
should  a  formal  entry  be  made  on  land  sit- 
uated in  a  wilderness,  remote  from  human 


habitation?  Such  an  entry  could  not  be  no- 
torious, as  there  is  no  vicinage  to  witness  the 
act,  or  preserve  the  fact.  If  the  law  requires 
nothing  in  vain,  it  cannot  require  an  entry 
under  such  cu'cumstances.  If  an  entry  is 
dispensed  with,  where  there  is  a  lease  for 
years,  an  advowson  or  rent,  or  where  force 
is  used  to  prevent,  as  above  stated,  is  not  the 
reason  as  strong,  to  excuse  an  entry  on  land 
in  an  uninhabited  country?  The  law  can 
never  require  an  individual  to  do  that  which 
is  either  impracticable  or  unreasonable.  And 
what  could  be  more  unreasonable  or  absurd 
than  to  require  an  entry  on  wild  lands,  to 
vest  a  complete  title  in  the  grantee? 

In  the  case  of  Green  v.  Liter,  [8  Cranch, 
(12  U.  S.)  229,]  above  cited,  the  com-t  held 
emphatically,  that  an  entry  was  unnecessary. 
And  the  same  doctrine  is  laid  down  in  4  Day, 
294.  And  in  the  case  of  Jackson  v.  Sellick, 
8  Johns.  208,  the  court  say,  where  a  feme 
covert  is  the  owner  of  wild  and  uncultivated 
land,  she  is  considered  in  law,  as  in  fact,  pos- 
sessed so  as  to  enable  her  husband  to  become 
a  tenant  by  the  curtesy.  An  actual  entry  or 
pedis  positio  by  the  wife  or  husband,  diu-ing 
the  covertiu-e  is  not  requisite  to  the  comple- 
tion of  a  tenancy  by  the  curtesy.  This  is  be- 
lieved to  be  the  correct  rule  as  generally  rec- 
ognized in  this  country.  Adhering  to  what 
they  conceive  to  be  the  common  law  on  the 
subject,  the  coiu*t  of  appeals  of  Kentucky 
hold  that  to  sustain  a  writ  of  right,  it  is  nec- 
essary for  the  demandant  to  show  a  pedis 
positio.  And  on  this  point  that  court  holds 
a  different  doctrine  from  the  supreme  court 
of  the  United  States.  Applying  this  rule  to 
aU  cases  and  under  all  circumstances,  as  the 
court  of  appeals  are  understood  to  do,  they 
are  unquestionably  wrong.  For  it  has  been 
shown  that  there  are  exceptions  to  the  rule. 
But  it  must  be  admitted  that  the  rule  is  of 
general  application,  only  subject,  like  most 
other  general  rules,  to  certain  exceptions. 
And  it  is  believed  that  wild  and  uncultivated 
lands  in  this  coimtry  form  as  strong  a  case, 
for  an  exception  to  the  rule,  as  any  above 
stated.  But  admitting  the  rule  here  laid 
down  as  correct,  the  counsel  for  the  plaintiffs 
insist  that  it  is  incumbent  on  the  person 
claiming  under  a  deed,  to  show,  if  not  a  pedis 
positio,  at  least  that  the  land  conveyed  was 
wild  and  uncultivated,  and  that  there  was  no 
adverse  possession,  when  the  deed  was  exe- 
cuted. That  these  being  essential  to  the 
validity  of  the  deed,  the  party  who  claims 
under  it,  must  prove  them. 

An  adverse  possession  cannot  be  presumed 
against  a  deed.  If  it  exist,  it  must  be  shown 
by  the  party  who  impeaches  the  deed  and  en- 
deavors to  avoid  it.  In  the  case  of  Holt's 
Heirs  v.  Hemphill's  Heirs,  3  Ham.  [3  Ohio,] 
238,  the  court  say  we  have  always  held  that 
a  complete  title  may  be  executed,  without  an 
actual  entry  and  where  the  grantee  may 
never  have  been  within  hundreds  of  miles  of 
the  property  granted.  The  delivery  of  the 
deed  has  been  considered  as  giving  posses- 


CURTESY. 


95 


sion  in  contemplation  of  law,  and  the  grantor 
is  presumed  to  have  entered,  unless  that  pre- 
sumption is  rebutted  by  facts  wholly  incon- 
sistent with  it,  as  where  the  premises  at  the 
time  of  the  grant,  are  in  the  actual  seisin  of 
a  third  person  claiming  title  adverse  to  the 
grantor.  In  the  case  of  Green  v.  Watkins,  7 
Wheat  [20  U.  S.]  27,  the  supreme  court  ob- 
serve, where  the  demandant  shows  no  seisin 
by  a  pedis  positio,  but  relies  wholly  on  a  con- 
structive actual  seisin,  in  virtue  of  a  patent 
of  the  land  as  vacant  land,  it  is  competent 
for  the  tenant  to  disprove  that  constructive 
seisin,  by  showing  that  the  state  had  pre- 
viously granted  the  same  land  to  other  per- 
sons with  whom  the  tenant  claims  no  privity. 
And  again  in  the  same  case,  the  coiu-t  say  in 
a  writ  of  right,  the  tenant  cannot  give  in  evi- 
dence the  title  of  a  third  person,  with  which 
he  has  no  privity,  unless  it  be  for  the  pur- 


pose of  disproving  the  demandant's  seisin. 
In  the  case  of  Bush  v.  Bradley,  4  Day,  298, 
the  com-t  held  that  proof  of  an  adverse  pos- 
session does  not  prevent  the  estate  by  the 
cui-tesy  from  attaching.  But  it  is  unneces- 
sary to  consider  this  point,  as  it  does  not 
arise  from  the  facts  in  the  case. 

We  think  that  the  four  requisites  to  con- 
stitute a  tenancy  by  the  curtesy,  which  are 
marriage,  seisin,  birth  of  a  child,  and  death 
of  the  wife,  have  been  sufficiently  shown  by 
the  defendant  to  sustain  the  deed  from  Fin- 
ley  to  him.  Indeed  none  of  the  requi.sites, 
except  that  of  seisin,  are  disputed.  And  we 
are  clearly  of  the  opinion  that  there  was 
seisin  in  deed  in  this  case,  which  gave  Finley 
a  right  to  claim  as  tenant  by  the  curte.sy; 
and  cnnsequeutly  that  his  deed  to  the  defend- 
ant conveys  a  life  estate  in  the  premises  in 
controversy. 


96 


ESTATES   IN   REAL  PROPERTY. 


THOMPSON  T.  MORROW. 

(5  Serg.  &  R.  289.) 

Supreme  Court  of  Pennsylvania.     Sept.  Term, 
1819. 

TILGHMAN,  C.  J.  The  record  in  this  case 
presents  two  bills  of  excerption,  taken  on  the 
trial  of  this  cause  in  the  court  of  common 
pleas  of  Allegheny  county.  It  is  an  action  of 
dower,  brought  by  Elizabeth  Thompson,  wid- 
ow of  Moses  Thompson,  deceased. 

1.  A  deed  from  the  said  Moses  Thompson 
and  Elizabeth  his  wife  (the  plaintiff),  conveying 
in  fee  simple  the  land  in  which  dower  is  now 
demanded,  to  Robert  Henderson,  under  whom 
the  defendant  claims,  having  been  given  in  evi- 
dence by  the  defendant,  the  court  were  of 
opinion,  that  by  virtue  of  this  deed,  the  plain- 
tiff was  barred  of  her  dower,  although  it  did 
not  appear,  that  she  was  privately  examined 
by  the  justice  of  the  peace  who  took  her  ac- 
knowledgment. This  point  having  been  de- 
cided in  the  case  of  Kirk  v.  Dean,  2  Bin.  341, 
and  that  decision  recognised  by  this  court  in 
several  subsequent  eases,  it  is  unnecessary,  at 
present,  to  say  anything  more,  than  that  we 
consider  the  law  as  settled.  There  was  error, 
therefore,  in  the  decision  of  the  court  of  com- 
mon pleas. 

2.  After  the  conveyance  by  Moses  Thompson 
to  Robert  Henderson,  the  land  in  which  dower 
is  claimed  (being  a  lot  of  ground  in  the  city  of 
Pittsburgh)  was  increased  in  value  by  the  erec- 
tion of  buildings;  and  the  value  was,  besides, 
greatly  increased  by  the  growth  of  the  city, 
and  other  causes  distinct  from  any  buildings  or 
improvements  made  by  the  purchaser.  The 
court  of  common  pleas  were  of  opinion,  that  in 
assigning  dower  to  the  plaintiff,  no  regard  was 
to  be  had  to  the  gradual  increase  of  value 
from  causes  unconnected  with  improvements 
made  by  the  purchaser,  but  that  the  plaintiff 
was  to  have  one-third,  according  to  the  value 
at  the  time  of  the  alienation  by  Moses  Thomp- 
son. It  is  a  point  of  great  impoi-tance  to  wid- 
ows, and  to  all  those  who  purchase  from  mar- 
ried men  without  legal  conveyances  from  their 
wives;  we  have,  therefore,  had  it  twice  argued, 
in  order  that  we  might  avail  ourselves  of  the 
iudustry  and  talents  of  the  learned  counsel  on 
both  sides. 

Dower  is  a  claim  founded  on  law,  and  favor- 
ed by  courts  both  of  law  and  equity.  It  is  a 
right  flowing  from  marriage;  and  marriage  is 
so  highly  regarded  as  to  be  a  valuable  consid- 
eration for  the  settlement  of  property  on  the 
wife.  By  marriage,  the  husband  acquires  an 
absolute  right  in  his  wife's  personal  estate,  a 
right  to  the  possession  and  profits  of  her  real 
estate  during  the  coverture,  and  also  a  right  to 
her  real  estate  during  his  life,  in  case  he  sur- 
vives her,  provided  he  has  issue  by  her,  and 
the  estate  be  of  such  a  nature,  that  the  issue 
may,  by  possibility,  inherit  it.  In  return  for 
all  this,  the  law  gives  to  the  wife,  in  case  she 
survives  hpr  husband,  one-third,  for  her  life, 
of  all  the  real  estate  whereof  her  husband  was 
seised  at  any  time  during  the  coverture,  wheth- 


er she  have  issne  by  him  or  not,  provided  the 
estate  be  of  such  a  nature,  that  any  issue^ 
which  might  have  been  born,  might,  by  possi- 
bility, have  inherited  it.  The  right  of  dower 
is  inchoate,  on  tlie  marriage,  but  not  consum- 
mate till  the  death  of  the  husband.  No  act  of 
the  husband  can  lessen  or  defeat  it.  But,  dur- 
ing the  marriage,  his  right  is  absolute;  he  may 
improve  the  estate  or  suffer  it  to  lie  waste; 
erect  buildings  or  pull  them  down  at  his  pleas- 
ure. All  that  the  wife  can  claim,  where  the 
husband  dies  seised,  is  one-third  of  the  land 
in  the  condition  in  which  it  is  found  at  the 
time  when  her  title  is  thus  complete,  viz.  at 
the  death  of  her  husband.  But  if,  after  her 
title  is  thus  complete,  and  before  assignment 
of  dower,  the  heir  erects  buOdings  or  makes 
other  improvements,  the  widow  shall  be  en- 
dowed of  one-third  part  of  the  estate,  accord- 
ing to  its  value  at  the  time  dower  is  assigned 
to  her;  because  it  was  the  folly  of  the  heir  to 
make  improvements  on  land  which  he  knew  to 
be  subject  to  dower.    Co.  Litt.  32a,  §  36. 

The  law  is  different,  however,  when  the  hus- 
band aliens  the  land  during  coverture,  for 
there  the  wife  shall  derive  no  advantage  from 
any  improvement  made  by  the  alienee.  There 
is  no  injustice  in  this,  for,  if  the  husband  had 
never  aliened,  he  might  not  have  made  these 
improvements.  And  it  would  affect  tlie  pros- 
perity of  the  coimtry,  by  discouraging  improve- 
ments in  building  and  agriculture,  if  the  wife 
were  to  be  endowed  of  one-third  of  the  value, 
including  these  improvements.  This  1  take 
to  have  been  tlie  main  reason  for  excluding 
the  wife  from  any  part  of  the  value  arising 
from  improvements;  although  we  find  in  the  old 
books  another  reason  assigned,  that  is  to  say, 
that  as  the  tenant  in  dower,  who  vouches  the 
heir  on  a  warranty  of  his  ancestors,  must  re- 
cover of  the  heir,  according  to  the  value  of 
the  land,  at  the  time  of  the  alienation,  it  would 
be  unreasonable  that  the  widow  should  recover 
of  the  tenant  according  to  any  other  value. 
So  far  as  concerns  improvements  made  by  the 
alienee,  it  is  agreed  that  the  tenants  shall  be 
protected  from  this  hardship;  but  as  to  any 
value  which  may  chance  to  arise  from  the 
gradually  increasing  prosperity  of  the  coun- 
try, and  not  from  the  labor  or  money  of  the 
alienee,  it  would  be  hard  indeed  upon  the  wid- 
ow, if  she  were  precluded  from  taking  her 
share  of  it.  She  runs  the  risk  of  any  deterio- 
ration of  the  estate,  which  may  arise  either 
from  public  misfortune  or  the  negligence  or 
even  the  voluntary  act  of  the  alienee;  for  al- 
though he  destroy  the  buildings  erected  by  the 
husband,  the  widow  has  no  remedy,  nor  can 
she  recover  any  more  than  one-third  of  the 
land  as  she  finds  it  at  the  death  of  her  hus- 
band.    Perk.   Conv.  §  829. 

There  are  not  many  authorities  on  this  sub- 
ject to  be  found  in  the  English  books,  and  such 
as  we  have  are  bottomed  on  decisions  said  to 
be  reported  in  the  Year  Books.  Mr.  Hargrave, 
in  his  note  on  Co.  Litt.  32a,  §  36,  cites  1  Hen. 
VII.;  17  Edw.  III.;  17  Hen.  IIL  "Dower," 
392;  31  Edw.  I.  "Vouch."  288.     "If  the  feoffee 


1 


DOWER. 


97 


improTe  by  buildinss,  yet  dower  shall  be  as  it 
\Yas  iu  the  seisin  of  the  husband,  for  the  heir 
is  not  bound  to  warrant  except  according  to 
the  value  as  it  was  at  the  time  of  the  feoff- 
ment; and  so  the  wife  would  recover  more 
against  the  feoffee,  than  he  would  recover  in 
value,  which  is  not  reasonable."  It  is  to  be 
remarked  that  the  decision  in  the  cases  here 
cited  was  upon  improvements  bj-  buildings 
erected  by  the  feoffee;  the  decision,  therefore, 
was  clearly  right,  aJ though  a  better  reason 
might,  perhaps,  be  given,  than  that  which  is 
said  to  be  assigned  for  it,  in  the  Yeaj  Books. 
In  Jenk.  Cent.  pp.  M,  35,  case  68,  in  which  tlie 
Year  Book  47  Edw.  III.  22,  is  cited,  we  have 
the  law  laid  down  as  follows:  "On  voucher,  if 
special  matter  be  showed  by  the  vouchee,  viz. 
that  the  land,  at  the  time  of  the  feoffment,  was 
worth  only  flOO,  and  now,  at  the  time  of 
the  voucher,  is  worth  £200,  by  the  industry  of 
the  feoffee,  the  tenant  shall  recover  only  the 
value,  as  it  was  at  the  time  of  sale,  for  if  the 
act  of  the  feoffee  has  meliorated  the  laud,  this 
shall  not  prejudice  the  feoffor  in  his  war- 
ranty." Here  is  satisfactory  reasoning  indeed. 
The  warrantee  shall  not,  by  any  acts  of  his 
own,  increase  the  responsibility  of  the  war- 
rantor, for  that  would,  in  effect,  be  to  alter  the 
contract  of  warranty.  But  even  granting  that 
the  tenant,  who  vouches  the  heir,  can  recover 
from  him  only  according  to  the  value  at  the 
time  of  the  alienation,  this  being  the  true  con- 
struction of  the  warranty,  the  wife  of  the 
feoffee,  who  is  no  party  to  the  warranty, 
ought  not  to  be  injured  by  it.  So  far  as  her 
rights  are  concerned,  she  ought  not  to  be  af- 
fected, but  by  those  reasons  of  policy  and  jus- 
tice, which  apply  to  her  case;  reasons  which 
extend  only  to  improvements  made  by  the 
feoffee. 

As  the  Year  Books  are  principally  relied  on, 
by  those  who  contend  that  the  widow  is  to  re- 
cover according  to  the  precise  value  at  the 
time  of  the  alienation,  I  endeavored  to  trace 
the  subject  through  those  books,  but  met  with 
great  difficulty,  from  the  imperfection  of  the 
printed  editions.  I  believe,  I  have  seen  aJl 
which  have  ever  been  printed  but  it  appears 
by  a  report  of  a  committee  of  the  British  house 
of  commons  appointed  for  ^the  purpose  of  in- 
quiring into  the  state  of  the  public  records,  in 
the  year  180O,  that  although  there  are  Year 
Books  from  the  reign  of  Edward  I.  (inclusive) 
to  the  1st  of  Henry  VIII.,  yet,  in  the  printed 
editions  there  are  the  following  chasms:  The 
whole  reign  of  Edward  I.  (except  some  short 
notes  in  the  exchequer);  of  the  reign  of  Ed- 
ward III.,  ann.  11  to  16,  ann.  19,  20,  and  31 
to  37;  whole  reign  of  Richard  II.;  of  Henry 
v.,  ann.  3,  4,  and  6;  of  Henry  VII.,  ann. 
37,  18,  19.  And  it  appears  from  the  same  re- 
port, that  in  some  instances  the  manuscripts 
contain  different  reports  of  the  same  cases. 
It  is  to  be  remarked  in  general  of  such  reports 
as  we  have  in  these  books,  that  they  are  often 
so  short  as  to  be  obscure  and  unsatisfactory. 

GATES,  R.  P.— 7 


"With  respect  to  dower,  however,  I  have  found 
no  adjudged  case  in  the  Year  Books  confining 
the  widow  to  the  value  at  the  time  of  the 
alienation  by  her  husband  where  the  question 
did  not  arise  on  improvements  made  after  the 
alienation. 

In  our  own  state  it  does  not  appear  that  the 
point  now  in  question  has  been  decidetl,  aJthougt 

I  have  certainly  considered  the  general  under- 
standing to  be  that  the  widow  should  have  the 
advantage  of  all  increase  of  value  not  arising 
from  improvements  made  after  the  alienation. 
And  such  I  know  to  have  been  tlie  opinion  of 
my  deceased  colleagues.  Judges  Yeates  and 
Brackeuridge.  As  to  the  case  of  Winder  v. 
Little,  1  Yeates,  152,  although  the  point  on 
which  the  court  decided  is  not  expressly  stated, 
yet  enough  appears  to  satisfy  me  that  it  was 
a  question  on  improvements.  By  the  supreme 
court  of  New  York,  justly  commanding  the 
highest  respect,  the  law  has  been  held  differ- 
ently. But  they  have  a  statute  of  their  own 
by  which  this  matter  is  regulated.  It  is  true 
that  court,  in  delivering  its  opinion,  did  say, 
that  the  statute  made  no  change  in  the  com- 
mon law;  still,  however,  the  decision  was  upon 
the  statute,  and  therefore  what  was  said  of 
the  common  law  ooight  not  to  be  considered 
as  more  than  a  dictum.  The  New  York  cases 
on  this  subject  will  be  found  in  2  Johns.  484; 

II  Johns.  510;  13  Johns.  179.  In  Massachu- 
setts, the  supreme  court  have  in  several  cases 
decided  that,  so  far  as  concerns  buildings  or 
other  improvements,  the  widow  shall  take  her 
third  according  to  the  value,  exclusive  of  the 
improvements.  9  Mass.  218,  Id.  8,  10  Miu«5. 
SO,  13  Mass.  227.  But  as  to  increase  of  value 
not  arising  from  improvements,  the  opinion  of 
the  late  Chief  Justice  Parsons  may  be  collect- 
ed from  what  fell  from  him,  in  the  case 
of  Gore  v.  Brazier,  3  Mass.  544.  His  words 
are  these:  "If  the  husband,  during  coverture, 
had  aliened  a  real  estate  in  a  commercial  town, 
and  at  his  death  the  rents  are  trebled,  from 
causes  unconnected  with  any  improvement  of 
the  estate,  and  the  widow  should  then  sue  for 
her  dower,  perhaps  it  might  be  diflicult  for  the 
purchaser  to  maintain  that  one-ninth  only,  and 
not  one-third,  should  be  assigned  to  her."  I 
am  not  aware  that  this  opinion  has  ever  been 
contradicted  in  Massachusetts,  and  therefore  I 
presume  that  the  law  is  held  there  in  conform- 
ity to  it.  Having  considered  all  the  authori- 
ties which  bear  uiK>n  tills  question,  I  find  my- 
self at  liberty  to  decide,  according  to  what  ap- 
pears to  me  to  be  the  reason  and  the  justice 
of  the  case,  which  is,  that  the  widow  shall  tJike 
no  advantage  of  improvements  of  any  kind 
made  by  the  purchaser,  but,  throwing  those  out 
of  the  estimate,  she  shall  be  endowed  accord- 
ing to  the  value  at  the  time  her  dower  shall 
be  assigned  to  her.  The  judgment  is,  there- 
fore, reversed  and  a  venire  facias  de  novo 
awarded. 

Judgment   reversed    and   a   venire   facias   de 
novo  awarded. 


98 


ESTATES  IN  REAL  PROPERTY. 


STOUGHTON   v.  LEIGH. 

(1  Taunt.  402.) 

Court  of  King's  Bench.     1808. 

Shepherd  &  Best,  for  the  dowress.  Mr,  Lens, 
contra. 

MANSFIELD,  C.  J.  The  grant  of  the  stra- 
tum must  be  taken  to  be  a  grant  in  fee-simple. 
In  the  course  of  the  discussion  I  was  strongly 
struck  with  the  argument  used  for  the  heir, 
that  Lord  Coke  has  in  1  Inst.  32,  enumerated 
all  the  species  of  inheritance  of  which  a  woman 
shall  be  endowed:  and  I  thought  it  extraordi- 
nary that  no  mention  should  be  made  of  mines. 
But  upon  referring  to  the  passage,  it  appears 
to  be  no  enumeration  of  all  the  things  whereof 
a  woman  shall  be  endowed.  Nothing  like  it. 
In  the  36th  section,  upon  which  this  passage 
is  a  commentary,  Littleton  says,  the  wife  shall 
be  endowed  of  all  lands  and  tenements  of  which 
her  husband  was  seised.  Lord  Coke  says  not 
a  word  to  explain  what  is  land  or  what  Is  a 
tenement,  thinking  the  import  of  those  terms 
well  known  in  the  law.  But  the  intention  of  the 
passage  is,  to  show,  that  though  all  lands  and 
tenements  are  subject  to  dower,  and  assignment 
is  to  be  made  by  metes  and  bounds  where  it 
can,  yet  it  is  no  impediment  to  dower  that  the 
tenements  are  of  such  a  nature,  as  that  they 
cannot  be  assigned  by  metes  and  bounds;  but 
in  those  cases  it  shall  be  assigned  as  well  as  it 
can  be,  as  by  the  third  toll-dish  of  a  mill,  or 
the  like.  In  the  preceding  chapter,  which  is 
of  tenant  by  the  curtesy,  Littleton  does  not 
mention  of  what  the  wife  must  be  seised;  and 
Lord  Coke  (page  29b)  speaks  of  lands  only,  but 
Littleton  (section  .52)  speaks  of  tenements.  The 
words  in  both  cases  must  receive  the  same  ex- 
position: and  it  is  only  necessary  to  see  wheth- 
er this  species  of  property  be  land  or  a  tene- 
ment. Comyn,  and  the  other  digests  which 
have  been  cited,  only  follow  the  words  of  Co. 
Litt.,  the  reason  of  whose  authority  is  above 
stated.  In  the  case  of  trees  there  is  a  profit  in 
the  shade  and  pannage,  but  in  the  case  of  a 
mine,  the  working  it  is  the  only  mode  in  which 
it  can  be  enjoyed. 

A  second  argument  was  prayed  on  behalf  of 
the  heir,  which  the  court  refused,  thinking  the 
case  sufficiently  clear. 

The  court  certified  to  the  high  court  of  chan- 
cery that  their  opinion  upon  the  questions  pro- 
posed to  them,  arising  from  the  first  and  sec- 
ond statements  in  the  case,  was,  that  the  widow 
of  John  Hanbury  was  dowable  of  all  his  mines 
of  lead  and  coal,  as  well  those  which  were  in 
his  own  landed  estates  as  the  mines  and  strata 
of  lead  or  lead  ore  and  coal  in  the  lands  of 
other  persons,  which  had  in  fact  been  open  and 
wrought  before  his  death,  and  wherein  he  had 
an  estate  of  inheritance  during  the  coverture; 
and  that  her  right  to  be  endowed  of  them  had 
no  dependence  upon  the  subsequent  continu- 
ance or  discontinuance  of  working  them,  either 
by  the  husband  in  his  lifetime,  or  by  those 
claiming  under  him  since  his  death. 

They  thought  too  that  her  right  of  dower  of 


such  mines,  &c.,  could  not  be  in  any  respect 
affected  by  leases  made  by  the  husband  during 
the  coverture;  but  if  any  of  the  existing  leases 
for  years  were  made  by  the  husband  before 
marriage,  then  the  endowment  (if  made  of  the 
mines),  must  be  of  the  reversions  and  of  the 
rents  reserved  by  such  leases  as  incident  to  the 
reversions;  in  which  case  they  thought  the 
widow  would  be  bound  so  long  as  the  demises 
continued,  to  take  her  share  of  the  renders, 
whether  pecuniary  or  otherwise,  according  to 
the  terms  of  the  respective  reservations.  They 
were  also  of  opinion  that  the  widow  was  not 
dowable  of  any  of  the  mines  or  strata  which 
had  not  been  opened  at  all,  whether  in  lease  or 
not. 

In  assigning  the  dower  of  Mr.  Hanbury's  own 
lands,  the  sheriff  must  estimate  the  annual  val- 
ue of  the  open  mines  therein  as  part  of  the 
value  of  the  estates  of  which  the  widow  is  dow- 
able; but  it  was  not  absolutely  necessary  that 
he  should  assign  to  her  any  of  the  open  mines 
themselves,  or  any  portions  of  them.  The  third 
part  in  value  which  he  should  assign  to  her 
might  consist  wholly  of  land  set  out  by  metes 
and  bounds,  and  containing  none  of  the  open 
mines.  Or  he  might  include  any  of  the  mines 
themselves  in  the  assignment  to  the  widow, 
describing  them  specifically  if  the  particular 
lands  in  which  they  lie  should  not  also  be  as- 
signed; but  if  those  lands  should  be  included 
in  the  assignment,  the  open  mines  within  them 
might,  but  were  not  necessarily  to  be  so  de- 
scribed, being  part  of  the  land  itself  which  was 
assigned;  and  as  the  working  of  open  mines 
was  not  waste,  the  tenant  in  dower  might  work 
such  mines  for  her  own  exclusive  profit.  Or 
the  sheriff  might  divide  the  enjoyment  and  per- 
ception of  the  profits  of  any  of  the  particular 
mines  as  after-mentioned. 

In  regard  to  the  mines  and  strata  which  Mr. 
Hanbury  had  in  the  lands  of  other  persons, 
they  were  of  opinion  that  it  was  not  necessary 
that  the  sheriff  should  divide  each  of  the  mines 
or  strata;  but  he  might  assign  such  a  number 
of  them  as  might  amount  to  one-third  in  value 
of  the  whole,  or  he  might  proportion  the  enjoy- 
ment of  such  of  them  as  he  should  think  neces- 
sary, so  as  to  give  each  a  proper  share  of  the 
whole. 

If  the  division  of  an  open  mine  could  be  made 
by  metes  and  bounds,  as  lands  are  required  to 
be  divided  without  preventing  the  parties  from 
having  the  proper  enjoyment  and  perception  of 
the  profits,  they  thought  that  mode  should  be 
adopted;  but  as  the  property  seemed  to  them  to 
be  incapable  of  a  beneficial  severance  in  that 
way,  they  thought  the  case  analogous  to  some 
of  those  stated  by  Lord  Coke  (1  Inst.  32a); 
wherein  it  is  held  that  the  sheriff  may  make  the 
assignment  in  a  special  manner;  and  that  there- 
fore he  might  so  proceed  with  respect  to  the 
mines  in  question.  They  found  no  authority, 
however,  establishing  any  precise  mode  of  di- 
viding a  mine,  nor  could  they  point  out  any 
that  might  not  be  attended  with  inconvenience; 
but  if  the  sheriff  was  to  make  the  assignment, 
they    thought    he    might    lawfully    execute    his 


DOWER. 


99 


duty  by  directing  separate  alternate  enjoyment 
of  the  whole  for  short  periods,  proportioned  to 
the  share  each  had  in  the  subject,  or  by  giving 
the  widow  a  proportion  of  the  profits. 

In  answer  to  the  last  question  proposed  to 
them,  they  were  of  opinion  that  the  widow  was 
entitled  to  work  for  her  own  exclusive  use  the 
open  mine  within  the  close  that  had  been  as- 
signed to  her  without  any  exception  of  the 
mine,  for  her  dower  of  one  of  the  estates,  not- 
-withstanding  the  excess  arising  from  the  omis- 


sion of  such  exception;  and  inasmuch  as  the 
assignment  was  the  act  of  the  heir  himself,  be- 
ing of  full  age  at  the  time,  they  thought  he 
had  no  remedy  at  law  against  the  dowress  for 
avoiding  the  consequences  of  that  act.  Had 
he  been  under  age  at  the  time,  he  might  have 
had  relief  by  writ  of  admeasurement  of  dower; 
or  had  the  assignment  been  made  by  the  sheriff 
in^  execution  of  a  judgment  in  dower,  the  heir 
might  have  had  a  scire  facias  to  obtain  an  as- 
signment de  novo. 


100 


ESTATES   IN   REAL  PROPERTY. 


STANWOOD  V.  DUNNING  et  al. 

(14  Me.  290.) 

Supreme  Judicial  Court  of  Maine.    1837. 

Willis  &  Fessenden,  for  demandant.  Mr. 
Mitchell,  for  defendants. 

EMERY,  J.  The  only  question  in  this  case 
is,  whether  on  the  facts  legally  and  properly 
proved,  David  Stanwood  had  such  seisin  of  the 
premises  as  could  entitle  the  demandant  to  dow- 
er. Premising,  that  family  settlements  made 
■without  fraud,  are  justly  entitled  to  the  favor- 
able consideration  of  courts,  we  proceed  to  sug- 
gest our  ideas  of  the  merits  of  the  case,  as  dis- 
closed in  the  agreed  statement  of  facts.  The 
claim  of  dower,  it  has  long  been  said,  is  to  be 
favored.  Still  unless  the  husband  were  legally 
and  beneficially  seised  of  the  estate  during  the 
coverture,  the  wife  is  not  entitled  to  dower. 
^  But  if  the  land  vests  in  the  husband  but  for 
a  single  moment  beneficially  for  his  own  use, 
the  wife  shall  be  endowed. 

It  is  said,  that  the  case  cited  by  plaintiff 
from  Cro.  Eliz.  503,  which  is  Broughton  v. 
Randall,  is  differently  reported  in  Noy,  64.  In 
Cro.  Eliz.  it  is  said,  the  title  of  the  feme  to  re- 
cover dower  was,  that  the  father  and  son  were 
joint-tenants  to  them,  and  the  heirs  of  the  son; 
and  they  were  both  hanged  in  one  cart;  but 
because  the  son,  as  was  deposed  by  witnesses, 
survived,  as  appeared  by  some  tokens,  viz.  his 
shaking  his  legs,  his  feme  thereupon  demanded 
dower,  and  upon  this  issue,  nunques  seizu 
dowers,  this  matter  was  found  for  the  demand- 
ant. 

In  1  Rop.  Prop.  369,  the  case  of  Broughton  v. 
Randall,  is  thus  stated.  A  father  was  tenant 
for  life,  remainder  to  his  sou  in  tail,  remainder 
to  the  right  heirs  of  the  father.  Both  of  them 
were  attainted  of  felony  and  executed  together. 
The  son  had  no  issue,  and  the  father  left  a 
widow.  Evidence  was  given  of  the  father  hav- 
ing moved  or  struggled  after  the  son,  and  the 
father's  widow  claimed  dower  of  the  estate,  and 
it  was  adjudged  to  her.  The  principle  appears 
to  be  this:  that  the  instant  the  father  survived 
the  son,  the  estate  for  life  of  the  father,  united 
with  the  remainder  in  fee  limited  to  him  upon 
the  determination  of  the  vested  estate  tail  in 
the  ^on,  so  that  the  less  estate  having  merged 
in  the  greater,  the  father  became  seised  of  the 
freehold  and  inheritance  for  a  moment  during 
the  marriage,  to  which  dower  attached  itself. 

But  if  the  instantaneous  seisin  be  merely  tran- 
sitory, that  is,  when  the  very  same  act  by  which 
the  husband  acquires  the  fee,  takes  it  out  of 
him,  so  that  he  is  merely  the  conduit  for  pass- 
ing it,  and  takes  no  interest,  such  a  momentary 
seisin  will  not  entitle  his  widow  to  dower. 

An  illustration  is  given  in  the  English  books, 
that  if  lands  be  granted  to  the  husband  and 
his  heirs  by  a  fine,  who  immediately  by  the 
same  fine  renders  it  back  to  the  conusor,  the 
husband's  widow  will  not  be  entitled  to  dower 
of  such  an  instantaneous  seisin.  Dixon  v.  Har- 
rison, Vaughan,  41;  Cro.  Car.  191;  Co.  Litt.  31. 

Id  this  case,  the  marriage,  death  of  the  hus- 


band, and  demand  of  dower  arc  admitted,  but 
his  seisin  is  denied. 

Without  going  into  an  examination  of  the  law 
relating  to  the  four  species  of  fines  used  in 
England,  we  may  remark,  that  it  is  considered 
there  as  one  of  the  most  valuable  of  the  com- 
mon assurances  of  that  realm,  being  in  fact  a 
fictitious  proceeding,  to  transfer,  or  secure,  real 
property,  by  a  mode  more  efficacious  than  ordi- 
nary conveyances.    1  Co.  Litt.  121a. 

But  to  show  how  this  mode  of  passing  prop- 
erty bears  on  the  seisin  of  the  husband,  so  far 
as  instantaneous  in  the  case  of  a  fine,  com- 
pared with  it  in  case  of  bargain  and  sale, 
the  case  of  Nash  v.  Preston,  Cro.  Car.  191,  is 
not  inappropriate.  It  was  a  bill  in  chancery. 
"J.  S.  being  seised  in  fee,  by  indenture  enroll- 
ed, bargains  and  sells  to  the  husband  for  £120, 
in  consideration,  that  he  shall  re-demise  it  to 
him  and  his  wife  for  their  lives,  rendering  a 
peppercorn;  and  with  a  condition,  that  if  he 
paid  the  £120  at  the  end  of  20  years,  the  bar- 
gain and  sale  shall  be  void.  He  re-demiseth  it 
accordingly  and  dies;  his  wife  brings  dower. 
The  question  was,  whether  the  plaintiff  shall  be 
relieved  against  this  title  of  dower.  Jones,  J., 
and  Croke,  to  whom  the  bill  was  referred,  con- 
ceived it  to  be  against  equity  and  the  agree- 
ment of  the  husband  at  the  time  of  the  pur- 
chase, that  she  should  have  it  against  the  les- 
sees, for  it  was  intended  that  they  should  have 
it  re-demised  immediately  to  them,  as  soon  as 
they  parted  with  it;  and  it  is  but  in  nature  of 
a  mortgage;  and  upon  a  mortgage,  if  land  be 
re-demised,  the  wife  of  the  mortgagee  shall  not 
have  dower.  And  if  a  husband  take  a  fine 
sur  cognizance  de  droit  comme  ceo,  and  render 
arrear,  although  it  was  once  the  husband's, 
yet  his  wife  shall  not  have  dower,  for  it  is  in 
him  and  out  of  him,  quasi  uno  flatu,  and  by 
one  and  the  same  act.  Yet  in  this  case,  they 
conceived,  that  by  the  law  she  is  to  have  dow- 
er; for  by  the  bargain  and  sale,  the  land  is 
vested  in  the  husband,  and  thereby  his  wife 
entitled  to  have  dower;  and  when  he  re-de- 
mises it  upon  the  former  agreement,  yet  the 
lessees  are  to  receive  it  subject  to  this  title  of 
dower;  and  it  was  his  folly,  that  he  did  not 
conjoin  another  with  the  bargainee,  as  is  the 
ancient  course  in  mortgages.  And  when  she  is 
dowable  by  act  or  rule  in  law,  a  court  of  equity 
shall  not  bar  her  to  claim  her  dower,  for  it  is 
against  the  rule  of  law,  viz.  "where  no  fraud 
or  covin  is,  a  court  of  equity  will  not  relieve." 
And  upon  conference  with  other  the  justices  at 
Serjeant's  Inn,  upon  this  question,  who  were 
of  the  same  judgment,  Jones  and  Croke  certi- 
fied their  opinion  to  the  court  of  chancery,  "that 
the  wife  of  the  bargainee  was  to  have  dower, 
and  that  a  court  of  equity  ought  not  to  preclude 
her  thereof." 

The  case  of  Holbrook  v.  Finney,  4  Mass.  566, 
recognizes  that  which  we  have  just  recited  as 
sound  law. 

In  the  case  now  under  discussion,  the  deed 
from  William  Stanwood  to  David  Stanwood 
bears  date  the  1st  of  March,  1824,  is  acknowl- 
edged on  the  6th  of  the  same  month,  and  re- 


DOWER. 


101 


corded  March  16th,  1824.  It  is  a  deed  of  bar- 
gain and  sale  to  said  David  in  fee  for  the  con- 
sideration of  love  and  affection  with  general 
warranty. 

The  deed  from  David  Stanwood  to  Charles 
Stanwood  is  dated  the  6th  of  March,  1824,  ac- 
knowledged the  same  day,  and  recorded  March 
11th,  1824.  But  if  requisite  so  to  examine  in 
order  to  help  to  a  decision,  it  is  manifest  from 
inspecting  the  deed  from  William  to  Charles 
Stanwood,  that  in  the  order  of  time  the  deed 
to  David  from  William  was  made  first,  and  then 
it  is  apparent  that  David  became  rightfully 
seised  in  fee,  and  beneficially  so,  though  for  a 
short  time. 

The  fee  was  not  rendered  back  by  David  to 
William,  quasi  uno  flatu,  and  therefore  the  de- 
mandant is  entitled  to  dower.  It  is  agreed  that 
the  object  of  the  father  was  to  divide  his  estate 
among  his  sons.  Nothing  could  more  strongly 
evince  the  propriety  of  leaving  the  law  to  raise 


the  future  benefit  to  the  wife  of  David  in  dower 
after  his  decease,  if  his  notorious  insolvency 
might  put  at  hazard  the  beneficial  continuance 
of  the  property  in  him  during  his  life. 

The  questions  about  the  admissibility  of  any 
other  evidence  of  former  or  subsequent  agree- 
ments and  conversations,  it  is  unnecessary  to  ex- 
amine further  than  to  say,  that  those  which 
preceded  the  deed  of  William  to  David  were 
merged  in  that  conveyance.  And  the  subse- 
quent agreements  and  conversations  do  not 
abridge  the  plaintiff's  right.  But  we  reject 
them.  The  purchasei-s  under  Charles  Stan- 
wood are  estopped  to  deny  the  seisin  of  David. 
Kimball  v.  Kimball,  2  Greenl.  226. 

Upon  every  view  of  which  the  case  is  legally 
susceptible,  on  the  facts  legally  and  properly 
proved,  we  are  satisfied  that  David  Stanwood 
had  such  seisin  of  the  premises,  as  would  entitle 
the  demandant  to  dower. 

The  defendants  must  be  defaulted. 


102 


ESTATES  IN   REAL  TROPERTY. 


WOODS  V.  WALLACE. 

(10  Fost.  384.) 

Superior  Court  of  Judicature  of  New  Hamp- 
shire.    Hillsborough.     Dec.  Term,  1854. 

Bill  in  equity.  The  bill  alleged  that  the  plain- 
tiff was  the  widow  of  Aaron  Woods,  late  of 
Nashville;  that  during  the  corerture  said  Aa- 
ron was  seised  of  the  premises  in  which  the 
plaintiff  claims  dower  in  this  bill.  It  is  fur- 
ther alleged  that  on  the  7th  day  of  December, 
1849,  while  so  seised,  the  said  Aaron  conveyed 
the  premises  in  mortgage  to  one  Z.  Shattuck, 
to  secure  the  payment  of  the  promissory  note  of 
said  Aaron  to  said  Shattuck,  which  mortgage 
was  in  no  wise  signed  by  the  plaintiff,  and, 
moreover,  the  note  thus  secured  has  never  been 
paid.  The  bill  further  alleged  a  mortgage  made 
by  said  Aaron  to  Benjamin  M.  Farley,  Esq., 
to  secure  the  payment  of  a  promissory  note  for 
?500  from  said  Aaron  to  said  Farley,  and  the 
plaintiff  signed  said  deed,  and  thereby  relin- 
quished her  right  of  dower  in  the  premises,  as 
against  the  last  named  mortgagee. 

It  alleged,  also,  that  the  defendant  purchased 
and  took  an  assignment  of  the  Farley  mortgage. 

The  bill  further  averred  the  death  of  said 
Aaron  Woods,  and  also  a  sale  by  A.  W.  Saw- 
yer, his  administrator,  of  all  his  right  in  equity 
of  redeeming  the  mortgaged  premises,  to  the 
defendant.  The  seisin  of  the  husband  during 
coverture,  the  execution  of  the  mortgage  to 
Shattuck,  and  also  of  the  Farley  mortgage,  and 
the  assignment  of  them  to  the  defendant,  as 
well  as  the  sale  of  the  equity  of  redemption  to 
the  defendant,  were  admitted  by  the  answer, 
and  are  not  facts  in  controversy  between  the 
parties. 

The  complainant  furthermore  averred  an  of- 
fer to  pay  the  defendant  her  fair  proportion  of 
the  amount  of  the  Farley  mortgage,  and  prayed 
that  her  dower  might  be  adjudged  and  duly 
assigned  to  her  in  the  premises. 

Mr.  Farley,  for  plaintiff.  A.  W.  Sawyer,  for 
defendant. 

WOODS,  J.  Upon  this  state  of  facts  alleged 
and  admitted,  the  mortgage  to  Shattuck  can 
furnish  no  answer  to  the  claim  of  dower  made 
by  the  plaintiff.  It  was  simply  a  deed  of  mort- 
gage, made  by  the  husband  alone,  during  the 
coverture,  and  could  not  affect  the  plaintiffs 
rights.  The  husband  can  no  more  encumber 
or  defeat  the  right  of  dower  of  the  wife  by  a 
mortgage,  in  this  state,  than  he  can  convey  it 
by  an  absolute  deed.  It  is  familiar  law  in 
this  state  that  the  husband's  conveyance  will  in 
no  wise  affect  his  wife's  right  of  dower.  It 
can  only  be  done  by  her  own  act.  Indeed,  we 
are  not  aware  that  it  is  claimed  that  he  can 
affect  or  defeat  her  estate  by  his  individual 
conveyance.  The  Shattuck  mortgage,  then, 
may  be  laid  out  of  the  case.  The  mortgage 
deed  to  Farley  was  signed  by  the  plaintiff  as 
well  as  her  husbandj  and  her  claim  of  dower  in 
the  premises  thereby  relinquished,  as  against 
the  grantee  in  that  deed,  his  heirs  and  assigns. 


Is  the  plaintiff  entitled  to  dower  in  the  prem- 
ises, and  if  so,  is  she  entitled  to  the  extent  of 
the  use  of  one  third  of  the  premises,  upon  mak- 
ing contribution  in  the  manner  proposed  in  the 
bill?  These  are  the  questions  arising  upon  the 
bill  and  answer.  The  claim  of  dower  made  in 
this  case  does  not  rest  upon  the  mere  right  in 
equity  of  redemption  of  the  husband.  It  is, 
however,  well  settled  that  a  widow  is  dowable 
of  an  equity  of  redemption.  To  be  sure,  it  is 
not  a  right  which  can  be  enforced  at  common 
law,  but  is  to  be  worked  out  through  the  aid  of 
the  courts  of  equity,  according  to  the  rules  and 
principles  governing  those  courts,  where  the 
rights  of  all  the  parties  interested  can  be  con- 
sidered and  settled,  or  perhaps  upon  a  petition 
under  chapter  one  hundred  and  thirty-one  of 
the  Revised  Statutes,  relating  to  mortgages  of 
real  estate.      Cass  v.  Martin,  6  N.  H.  25. 

At  the  date  of  the  deed  Woods  and  wife  each 
had  distinct  rights  in  the  land.  The  plaintiff 
had  an  inchoate  right  of  dower  in  the  prem- 
ises, which,  as  against  all  persons  but  such  as 
claim  by  or  from  herself,  became  perfect  upon 
the  death  of  her  husband.  The  husband  had 
the  remaining  interest  in  the  premises.  The  in- 
terest of  each  in  the  land  was  encumbered  by 
the  act  of  each  in  the  execution  of  the  deed. 
Neither  of  the  mortgagors  could  redeem  as 
against  the  mortgagee,  without  the  payment  of 
the  whole  debt  which  the  mortgage  was  intend- 
ed to  secure.  Cass  v.  Martin,  6  N.  H.  25;  Gib- 
son V.  Crehore,  5  Pick.  146;  Robinson  v.  Lea- 
vitt,  7  N.  H.  74;  Russell  v.  Austin,  1  Paige, 
192;    2  Pow.  Mortg.  689. 

At  present  the  plaintiff  has  a  right  of  dower 
encumbered  by  the  mortgage,  and  the  defend- 
ant has  the  right  in  equity  of  the  husband,  and 
also  holds  the  mortgage  interest  by  purchase 
and  assignment. 

Can  the  widow  be  permitted  to  enjoy  any  in- 
terest in  the  premises,  excepting  upon  the  pay- 
ment by  her  of  the  whole  Farley  mortgage  debt 
to  the  defendant?  Or  may  she  entitle  herself 
to  be  endowed  of  any  part  of  the  estate  upon 
payment  of  her  fair  proportion  of  the  debt  ac- 
cording to  her  dower  interest?  The  bill  and 
answer  show  that  the  defendant  set  off  to  the 
plaintiff  an  interest  in  the  premises  less  than 
one  third  part.  But  we  are  of  the  opinion  that 
she  was  entitled,  upon  making  her  proper  con- 
tribution, to  a  greater  share  or  interest.  Upon 
payment  of  her  proper  share  of  the  debt  she 
was  entitled  to  be  let  in  upon  her  dower  in  the 
same  manner  in  which  she  would  have  been 
entitled  if  she  had  never  encumbered  the  es- 
tate by  the  execution  of  the  mortgage. 

If  we  look  at  the  exact  relation  of  the  sev- 
eral parties  to  the  estate,  we  think  the  rights 
of  each  will  be  apparent.  The  defendant,  in 
the  first  place,  purchased  the  Farley  mortgage, 
and  it  was  assigned  to  him  upon  his  paying  the 
amount  of  it.  He  subsequently  purchased  the 
right  which  Aaron  Woods  had  at  his  death  to 
redeem  the  premises.  After  the  purchase  of 
the  equity  of  redemption,  as  we  conceive,  he 
stood  in  the  same  position,  and  had  the  same 
rights  which  he  would  have  had  if  he  had  first 


DOWER. 


10£ 


purchased  the  equity  of  redemption,  and  after- 
wards had  paid  the  amount  of  the  mortgage,  or 
had  taken  an  assignment  of  it.  In  either  case 
he  would  be  in  equity  and  in  law  the  purchaser 
and  owner  of  the  mortgage  by  way  of  redemp- 
tion. The  plaintiff  also  has  the  same  rights 
in  the  estate  that  she  would  have  had  if  the 
purchase  of  the  equity  had  been  made  by  the 
defendant,  in  the  first  instance,  and  the  mort- 
gage afterwards.  She  ha-s  an  interest  in  the 
estate  mortgaged,  she  having  executed  a  mort- 
gage deed  only,  and  not  an  absolute  deed  to  the 
mortgagee. 

Having  an  interest  in  the  premises,  she  has, 
like  all  other  parties  thus  situated,  a  right  to 
redeem.     That  is  a  universal  principle. 

What  is  she  to  do  to  entitle  herself  to  re- 
deem, or  how  is  she  to  avail  herself  of  her  right 
to  redeem? 

The  defendant,  when  he  purchased,  and  so 
long  as  he  held  the  mortgage  interest  only,  of 
Farley,  was  entitled  to  receive  of  the  plaintiff, 
or  of  any  one  holding  the  equity  of  redemption, 
the  entire  sum  secured  by  the  mortgage.  There 
was  no  principle  of  law  or  equity  that  could 
conflict  with  that  right.  Upon  no  ground  could 
the  plaintiff,  or  any  other  one  holding  the  equi- 
ty of  redemption,  redeem,  short  of  a  payment  of 
the  entire  sum  secured  by  the  mortgage.  Cass 
v.  Martin  and  Robinson  v.  Leavitt,  before  cited, 
and  Rossiter  v.  Cossit,  15  N.  H.  38. 

But  when  the  defendant  purchased  the  equi- 
ty, she  became  entitled,  as  against  him,  to  be 
endowed  of  one  third  part  of  the  premises,  up- 
on contributing  her  just  proportion  of  the  mort- 
gage debt,  according  to  the  value  of  her  in- 
terest. 

We  think  it  would  be  idle  to  hold  that  the  de- 
fendant was  entitled  to  receive  the  whole 
amount  of  the  mortgage  before  the  complain- 
ant could  be  let  in  upon  her  dower  estate;  for 
if  she  should  so  pay  the  amount  of  the  mort- 


gage, she  would  clearly  be  entitled  to  the  whole 
premises,  until  contribution  should  be  made  to 
her  by  the  defendant.  Swaine  v.  Ferine,  5 
Johns.  Ch.  482;  Call  v.  Butman,  7  Greenl.  102; 
Robinson  v.  Leavitt,  ubi  supra,  and  cases  there 
cited.  The  estate  of  each  in  the  land  was  lia- 
ble for  the  whole  mortgage  debt.  He  could 
avail  himself  of  the  equity  of  redemption  pur- 
chased by  him  at  the  administrator's  sale  in  no 
other  way  than  by  contributing  his  fair  pro- 
portion of  the  mortgage  debt.  Taylor  v.  Bas- 
sett,  3  N.  H.  204. 

Why,  then,  should  she  be  driven  to  the  idle 
ceremony  of  paying  the  whole  mortgage,  there- 
by giving  the  defendant  the  right  to  regain  his 
interest  in  the  premises  by  refunding  to  her 
his  share?  Such  a  course,  we  think,  is  not  re- 
quired, nor  is  it  in  accordance  with  well  consid- 
ered decisions  in  like  cases. 

Ferhaps  another  view  of  the  case  may  be 
taken,  leading  to  the  same  result  The  pur- 
chase of  the  interest  of  Aaron  Woods  in  the 
estate,  that  is,  of  the  equity  of  redemption,  may 
well  be  considered  as  an  extinguishment  of  so 
much  of  the  mortgage  debt  as  shall  bear  the 
same  proportion  to  the  whole  debt  secured  by 
the  mortgage,  as  the  value  of  that  interest  in 
the  premises  bears  to  the  whole  interest  of 
both  the  mortgagors — or  the  whole  estate.  Cer- 
tainly that  is  an  equitable  view.  It  is  the  duty 
of  a  purchaser  of  an  equity  to  redeem  from 
the  mortgage.  If  he  holds  the  mortgage  it 
should  be  considered  as  extinguished  to  that  ex- 
tent. To  entitle  herself,  then,  to  be  endowed, 
the  complainant  must  pay  the  balance  to  the 
defendant,  or  offer  to  do  it.  This  she  did  of- 
fer to  do.  And  so  upon  paying  the  same  into 
court  after  its  amount  shall  be  ascertained  by 
an  auditor  or  master  appointed  for  the  pur- 
pose, she  will  be  entitled  to  have  her  dower  set 
off  to  her  in  the  premises. 

Let  a  decree  be  entered  accordingly. 


104 


ESTATES  IN  REAL  PROPERTY. 


PULLING  V.   PULLING' S  ESTATE. 
(56  N.  W.  765,  97  Mich.  375.) 
Supreme  Court  of  Michigan.    Nov.  10,  1893. 

Error  to  circuit  coTirt,  Wayne  county;  Cor- 
nelius J.  Reilly,  Judge. 

Petition  by  Jeane  W.  Pulling  for  assign- 
ment of  dower  in  the  estate  of  Henry  P.  Pul- 
ling, deceased.  From  a  decree  of  the  cir- 
cuit com-t  reversing  an  order  of  the  probate 
court,  which  assigned  dower,  petitioner  ap- 
peals.    Reversed. 

Eraser  &  Gates,  for  appellant  William  J. 
Gray,  for  appellee. 


McGRATH,  J.  The  circuit  judge  found 
that  Henry  P.  Pulling  and  .Jeane  W.  Pul- 
ling were  married  April  26,  1890;  that  said 
Henry  P.  Pulling  died  July  15,  1890,  leaving 
appellant,  his  widow,  surviving  him;  that, 
at  the  time  of  his  death,  said  Henry  P.  Pul- 
ling was  seised  in  fee  of  10  parcels  of  land; 
that,  prior  to  the  marriage  of  Henry  P.  Pul- 
ling, he  had  made  and  executed  9  separate 
contracts  for  the  sale  of  said  parcels  of  land; 
that  at  the  time  of  said  marriage,  and  also 
at  the  time  of  his  death,  the  vendees  imder 
said  contracts  were,  respectively,  in  the  pos- 
session of  the  several  tracts  of  land  under 
said  contracts,  which  were  then  in  full  force, 
—that  is,  none  of  them  had  been  declared 
forfeited.  The  piu-chase  price,  in  one  in- 
stance, was  $400;  in  another,  $800;  and  in 
another,  $1,000.  The  others  were  from  $1,- 
100  to  $1,400.  The  aggregate  consideration 
was  originally  about  $49,000.  Payments  had 
reduced  this  amount  to  $45,000.  The  sole 
question  raised  is  whether,  as  between  the 
widow  and  the  estate,  the  interest  in  these 
lands  shall  be  treated  as  realty  or  as  per- 
sonalty. The  circuit  judge  found,  as  a  mat- 
ter of  law,  that  the  widow  was  not  entitled 
to  dower  in  these  lands,  and  the  widow  ap- 
pt'als. 

Our  statute  provides  (How.  Ann.  St  §  5733) 
that  "the  widow  of  every  deceased  pei-son 
shall  be  entitled  to  dower,  or  the  use  diu-ing 
her  natural  life,  of  one-third  part  of  aU  the 
lands  whereof  her  husband  was  seised  of  an 
estate  of  inheritance,  at  any  time  during  the 
marriage,  unless  she  is  lawfully  barred  there- 
of." It  is  insisted  on  behalf  of  the  estate 
that,  at  the  time  of  the  marriage,  Henry  P. 
Pulling  held  the  legal  title  only  in  tnist  for 
the  purchasers.  The  cases  cited,  however, 
in  which  this  has  been  asserted,  and  the 
right  to  dower  denied,  are,  without  an  ex- 
ception, cases  where  the  vendee  has  paid  the 
entire  consideration.  In  Kintner  v.  McRae, 
2  Cart  (Ind.)  453,  A.,  in  1836,  sold  to  B.,  who 
took  a  portion  of  the  pm'chase  money,  gave 
his  note  for  the  balance,  and  took  a  bond 
conditioned  that  the  deed  should  be  made 
when  all  of  the  purchase  money  should  be 
paid.  A.  afterwards  filed  a  bill  to  enforce 
the  payment,  and  in  1845  the  land  was  sold 
to  C.  A.  married  in  1842,  and  died  in  1847. 
The  widow  petitioned  for  dower  in  the  land 


sold  to  C.  Dean  v.  Mitchell,  4  J.  J.  Marsh, 
451,  follows  Stevens  v.  Smith,  Id.  65,  where 
A.,  unmanued,  executed  an  unconditional  ob- 
ligation to  convey  to  B.,  and  during  coverture 
A.  had  conveyed.  In  Dean  v.  Mitchell,  the 
court  say:  "The  trust  existed  when  A.  mar- 
ried, and  therefore,  as  he  has  never  been, 
since  his  marriage,  beneficially  seised,  but 
held  only  as  a  ti'ustee,  his  wife  has  no  right 
to  dower."  In  Oldham  v.  Sale,  1  B.  Mon.  76, 
the  husband  had,  before  marriage,  received 
the  full  consideration,  and  given  a  bond  for 
a  deed.  In  Gaines  v.  Gaines,  9  B.  Mon.  295, 
the  principle  was  applied  to  a  bona  fide  gift 
made  before  coverture  to  a  child  by  a  for- 
mer marriage,  who  took  possession  and  im- 
proved the  land  under  the  gift,  claiming  it 
as  his  own  before  the  covertiu^e,  and  re- 
ceived the  conveyance  from  the  hus'band 
afterwards.  In  Rawlings  v.  Adams,  7  Md. 
26,  the  bond  for  the  deed  given  before  mai'- 
riage  recited  full  satisfaction  for  the  land. 
In  Cowman  v.  Hall,  3  Gill  &  J.  398,  aU  of  the 
conditions  of  the  contract  had  been  per- 
formed by  the  defendant  before  the  mar- 
riage. In  Firestine  v.  Firestine,  2  Ohio  St. 
415,  the  husband  had,  for  considerations 
partly  good  and  partly  valuable,  agreed  to 
convey  certain  lands  to  his  son,  who  paid 
the  valuable  consideration  and  took  posses- 
sion, and  after  the  father's  remarriage  a  con- 
veyance was  made  to  the  son.  In  none  of 
these  cases  had  the  husband,  even  at  the 
time  of  the  man-iage,  any  beneficial  interest  in 
the  land.  In  Adkins  v.  Holmes,  2  Cart.  (Ind.) 
197,  A.,  while  unmarried,  agi'eed  to  convey 
the  land  in  question  to  B.  for  $975.  A.  after- 
wards mai-ried  and  died.  During  A.'s  life- 
time, B.  had  paid  all  of  the  pm'chase  money, 
excepting  $229,  and  that  amoimt  he  had  paid 
to  A.'s  administrator.  The  petition  was  filed 
against  B.  In  Beckwith  v.  Becliwith,  61 
Mich.  315,  28  N.  W.  Rep.  116,  the  husband 
had,  prior  to  his  maiTiage  with  plaintiff,  en- 
tered into  a  contract  with  the  sou  by  a  for- 
mer marriage,  under  which  the  son  was  to 
have  the  use  of  the  entire  farm  during  his 
father's  lifetime,  and  until  certain  debts  were 
paid.  The  son  was  to  pay  to  the  father,  dur- 
ing his  lifetime,  one-half,  or  so  much  thereof 
as  he  might  require,  of  the  net  proceeds  of 
the  fai-m.  The  father,  in  consideration  oi 
the  contract  provisions,  executed  a  deed  to 
the  son  of  an  undivided  one-half  of  the  farm, 
and  deposited  the  same  in  escrow,  to  be  de- 
livered to  the  son  on  the  performance  of  the 
contract.  In  1883  the  father  married  plain- 
tiff, and  died  in  1884.  By  his  will,  afterwards 
executed,  he  devised  one-half  of  the  land  to 
his  son,  and  the  other  half  to  his  wife.  By 
codicil  he  gave  to  the  wife  a  sum  of  money 
in  lieu  of  the  half  of  the  land.  Upon  the  ex- 
ecution of  the  contract,  the  son  entered  upon 
its  performance;  and  in  1885,  when  plaintiff 
demanded  her  dower  in  the  land,  the  son 
had  paid  the  unseciu'ed  debts,  had  reduced 
the  mortgage  upon  the  land  from  $8,000  to 
$5,500,  and  was  in  peaceable  possession.  It 
was  held,  in  that  case,  that  the  plaintiff's 


DOWER. 


1U5 


right  to  dower  in  said  land  was  subject  to 
the  equities  existing  between  her  husband 
and  defendant,  under  the  contract  and  deed 
at  the  time  of  her  marriage,  which  could  not 
destroy  and  impair  the  same. 

In  the  present  case,  it  is  not  sought  to  sub- 
ject the  purchaser's  interest,  nor  the  interest 
held  by  the  husband  at  the  time  of  the  mar- 
riage, to  dower.  The  only  claim  made  is 
that  the  interest  held  at  the  time  of  his 
death  shall  be  regai-ded  as  realty.  It  is  pure- 
ly a  question  of  the  quality  of  that  interest. 
The  husband  died  seised,  not  of  the  legal 
title  alone,  but  of  the  legal  title  with  a  ben- 
eficial interest  aggregating  $4.5,000.  A  court 
of  equity  would  imdoubtedly  interpose  in  any 
case  to  protect  the  interest  of  the  purchaser, 
and  this  would  be  so  even  though  the  pur- 
chase money  had  all  been,  in  fact,  paid  dur- 
ing the  lifetime  of  the  husband.  The  wife's 
rights  would  be  regarded  as  attaching  sub- 
ject to  the  subsisting  claim  or  existing  con- 
tract, and  would  be  liable  to  be  defeated  by 
the  performance  of  the  conditions  of  the 
contract  by  the  purchaser  during  covertm*e. 
As  is  said  in  4  Kent,  Comm.  50,  "The  wife's 
dower  is  liable  to  be  defeated  by  every  sub- 
sisting claim,  in  law  or  equity,  existing  be- 
fore the  inception  of  her  right."  In  the 
present  case  the  wife's  dower  has  been  de- 
feated only  so  far  as  the  amount  due  upon 
the  contracts  has  been  reduced  by  payment 
Even  though  a  trust  be  implied,  it  is  one 
coupled  with  a  beneficial  interest,  and  it  is 
well  settled  that  the  wife  of  a  trustee  is 
entitled  to  dower  commensm-ate  with  the  hus- 
band's interest.  Id.  43.  In  Bowie  v.  Berry, 
3  Md.  Ch.  359,  the  husband,  in  1832,  during 
coverture,  pxu*chased  the  land,  taking  from 
the  vendor  a  bond  conditioned  to  convey  the 
title  on  payment  of  the  purchase  money.  In 
1839  the  husband  sold  the  land,  and  gave  to 


the  vendee  a  bond  for  the  deed.  In  1843  the 
husband  paid  the  balance  of  the  purcha.se 
money  on  his  purchase,  and  took  a  deed,  and 
died  in  1848.  At  his  death  a  portion  of  the 
purchase  money  upon  the  contract  for  sale 
made  by  him  was  unpaid.  The  court  in  that 
case  say:  "It  may  be  that  in  equity  an  agree- 
ment of  the  husband  before  dower  attaches 
will,  if  enforced  in  equity,  extinguish  the 
claim  to  dower;  but  no  case,  I  apprehend, 
can  be  found,  in  which  it  has  been  held  that 
the  mere  agi-eement  to  convey,  after  the  in- 
ception of  the  title  to  dower,  has  defeated 
the  title,  though  an  actual  conveyance  with- 
out the  concurrence  of  the  wife  would  have 
done  so.  No  case  has  been  decided  in  which 
it  has  been  held  that  the  mere  executory 
contract  to  convey  by  the  husband  has  had 
the  effect  to  defeat  the  dower."  Although, 
in  that  case,  the  legal  title  vested  in  the 
husband  after  marriage,  he  had  before  mar- 
riage entered  into  a  conti'act  to  convey  that 
title,  and  there  is  no  difference  in  principle 
between  that  case  and  the  present.  How. 
St.  §  5887,  only  applies  to  cases  where  a  for- 
feitm-e  has  been  declared,  and,  in  any  event, 
could  only  apply  to  the  three  contracts,  not 
exceeding  $1,000  in  amount.  It  follows  that 
the  widow  is  entitled  to  dower  in  the  interest 
held  by  the  husband  at  the  date  of  his  death, 
that  interest  being  represented  by  the 
amount  then  due  upon  these  contracts.  We 
discover  no  difficulty  as  respects  the  ad- 
measurement. Dower  cannot  be  assigned  of 
the  lands  in  question,  but  a  sum  in  lieu  of 
dower  may  be  awarded.  Brown  v.  Bronson. 
35  Mich.  415.  The  judgment  of  the  circuit 
coiu*t  will  therefore  be  reversed,  with  costs 
of  both  coui'ts  to  appellant,  and  the  judg- 
ment of  this  court  certified  to  the  probate 
court  for  the  county  of  Wayne.  The  other 
justices  concurred. 


106 


ESTATES  IN  REAL  PROPERTY. 


HODGES  V.  PHINNEY  et  al. 

(64  N.  W.  477.) 
Supreme  Court  of  Mlchig-an.      Oct  1,  1895. 

Appeal  from  circuit  court,  Gratiot  co^inty, 
in  chancery;    Stierman.  B.  Daboll,  Judge. 

A  bill  by  Amelia  Hodges  against  Ansel  H. 
Pbinney  and  others,  to  foreclose  a  mort- 
gage. From  a  decree  for  plaintiff,  defendant 
Newcomb  appeals.    Reversed. 

Luke  S.  Montague,  for  appellant.  W.  E. 
&  J.  H.  Winton,  for  appellee. 

GRANT,  J.  The  question,  as  stated  by  the 
complainant's  counsel,  is:  Could  she  buy  the 
•mortgage  upon  the  land  admeasured  to  her  as 
dower,  and  enjoy  all  the  rights  thereunder  that 
Button,  the  original  mortgagee,  had?  As  stated 
by  the  defendant's  counsel  the  question  is:  Is 
not  a  widow  endowed,  owning  a  mortgage 
covering  the  land  set  off  to  her  as  dower, 
bound  to  keep  the  interest  down?  It  is  the 
duty  of  the  life  tenant  to  pay  the  interest  on 
incumbrances  existing  at  the  time  the  ten- 
ancy was  created.  A  dowress  forms  no  ex- 
ception to  the  rule.  4  Kent,  Comm.  74; 
House  V.  House,  10  Paige,  158.  In  the  case 
before  us  the  entire  real  estate  was  mort- 
gaged. One-third  of  it  was  assigned  to  the 
complainant  as  her  dower,  burdened  with 
one-third  of  the  entire  mortgage  debt.  The 
mortgage  was  past  due.  If  we  adopt  the 
complainant's  view,  she  can  recover  the  en- 
tire amount  of  the  mortgage  against  the  re- 
mainder-man, and  her  estate  will  be  enlarged 
to  the  extent  of  the  payment.  In  that  event 
the  land  in  which  she  was  endowed  would 
be  worth  about  $4,400,  instead  of  $3,100, 
which  was  the  value  assigned  to  her.  Such 
holding  would  be  not  only  contrary  to  law, 
but  to  equity  as  well.  Whether  the  life  ten- 
ant or  the  remainder-man  redeems  or  takes 
an  assignment  of  the  mortgage,  each  must 
contribute  to  the  payment  of  the  principal 
according  to  the  value  of  his  interest.  Much 
conflict  formerly  existed  among  the  authori- 
ties upon  this  point,  but  the  well- settled  rule 
now  is  that  the  dowress  must  pay  the  pres- 
ent value  of  an  annuity  based  upon  the  an- 
nual interest  which  the  law  requires  her  to 
pay.  The  rule  is  thus  stated  in  an  early  and 
leading  case:  "How  is  the  plaintiff  [a  dow- 
ress] to  contribute  ratably  to  discharge  the 
mortgage  debt?  If  she  was  to  pay  one-third 
of  the  debt  and  interest  (exclusively  of  costs) 
paid  by  the  defendant,  together  with  interest 
on  that  one-third  from  the  time  the  defend- 


ant paid  it,  there  can  be  no  doubt  that  this 
would  be,  to  the  defendant,  a  satisfactory 
contribution.  But  the  plaintiff  has  only  a 
life  interest  in  the  dower,  and  payment  of 
the  entire  one-third  of  that  debt  would  be 
unjust.  It  would  be  making  her  pay  for  a 
life  estate  equally  as  if  it  was  an  estate  in 
fee.  The  more  accurate  rule  would  appear 
to  be  that  she  should  'keep  down'  one-third 
of  the  interest  of  the  mortgage  debt,  by  pay- 
ing, during  her  life,  to  the  defendant,  the 
interest  of  one  third  part  of  the  aggregate 
amount  of  the  principal  and  interest  of  the 
mortgage  debt  paid  by  the  defendant,  to  be 
computed  from  the  date  of  siich  payment. 
But,  as  it  would  be  inconvenient  and  embar- 
rassing to  charge  her  with  such  an  annuity, 
then  let  the  value  of  such  annuity  from  the 
plaintiff  (her  age  and  health  considered)  be 
ascertained  by  one  of  the  masters  of  the 
court,  and  be  deducted  from  the  amount  of 
the  rents  and  profits  so  coming  to  her;  and, 
if  that  value  should  exceed  th'e  amount  of 
the  rents  and  profits  so  coming  to  her,  that 
then  the  residue  of  such  value  be  deducted 
from  the  dower  to  be  assigned  to  her,  out 
of  the  house  and  land  mentioned  in  the  bill. 
The  question  is,  if  an  estate  in  fee  in  one 
equal  third  part  of  the  premises  ought  to  pay 
the  one  equal  third  part  of  the  mortgage  debt 
and  interest  paid  by  the  defendant,  then 
what  proportion  ought  the  plaintiff's  life  es- 
tate in  that  one  third  part  to  pay?  I  ap- 
prehend the  value  of  such  an  annuity  would 
be  that  result."  Swaine  v.  Perine,  5  Johns- 
Ch.  482.  In  chapter  24,  Scrib.  Dower,  the 
subject  will  be  found  very  fully  and  ably 
discussed,  and  the  authorities  fully  cited. 

This  annuity  cannot,  however,  be  based 
upon  the  rate  of  interest  contained  in  the 
mortgage,  but  must  be  based  upon  the  legal 
rate  of  interest  at  the  time  the  first  decree  is 
rendered.  The  contest  is  no  longer  between 
the  mortgagee  and  those  whose  duty  it  is  to 
pay,  but  between  the  latter,  who  are  requir- 
ed to  contribute,  and  as  between  whom  there 
is  no  agreement  to  be  boimd  by  the  rate  fixed 
in  the  mortgage.  Their  relation  is  none  other 
than  that  where  one  pays  money  for  the 
benefit  of  another  without  any  agreement  as 
to  the  rate  of  interest,  the  legal  rate  of 
interest  (6  per  cent.)  must  control.  The  de- 
cree will  be  reversed,  with  costs,  and  the 
case  remanded  to  the  court  below,  with  in- 
structions to  enter  a  final  decree  in  accord- 
ance with  this  opinion.  The  other  justices 
concurred. 


DOWER. 


107 


MOORE  V.  HARRIS  et  al. 

(4  S.  W.  439,  91  Mo.  616.) 
Supreme  Court  of  Missouri.     May  16,  1887. 
Error  to  circuit  court,  Scott  county 

AVilson  Arnold  and  D.  H.  Mclntyre,  for  plain- 
tiff in  error.  L.  Brown,  for  defendants  in  er- 
ror. 

SHERWOOD,  J.  Ejectment  for  lot  03  in 
the  town  of  Benton.  Both  parties  claim  un- 
der Elizabeth  Crow,  as  the  comiuon  source 
of  title.  To  show  title  in  himself,  the  plain- 
tiff, after  showing  title  in  Albion  Crow,  the 
husband  of  Elizabeth  Crow,  by  a  commis- 
sioner's deed,  dated  October  28,  1845,  next 
offered  in  evidence  a  deed  from  the  collector 
of  Scott  county,  Thomas  S.  Rhoades,  to 
Elizabeth  Crow,  dated  October  28,  1867,  pro- 
fessing to  convey  to  the  grantee  therein  the 
lot  in  controversy,  as  the  property  of  Albion 
Crow,  and  as  sold  because  of  delinquent 
taxes. 

Plaintiff  next  offered  in  evidence  a  deed 
for  the  lot  in  question,  from  Elizabeth  Crow 
to  himself,  dated  March  25,  1808,  which 
deed,  so  far  as  necessary  to  copy  it  here,  is 
as  follows:  "Know  all  men  by  these  pres- 
ents, that  I,  Elizabeth  Crow,  of  the  county 
of  Scott  and  state  of  Missouri,  have  this 
day,  for  and  in  consideration  of  the  sum  of 
seven  hundred  dollars,  to  me  in  hand  paid 
by  Joseph  H.  Moore,  of  the  same  county 
and  state,  granted,  bargained,  and  sold,  and 
by  these  presents  do  grant,  bargain,  and  sell, 
unto  the  said  Joseph  H.  Moore  the  followihg 
described  real  estate,  situate  in  the  county 
of  Scott  and  state  of  Missouri;  that  is  to 
say,  the  south-east  quarter  of  the  north- 
east quarter  of  sec.  14,  and  the  undivided 
half  interest  in  the  west  half  of  the  south- 
west quarter  of  sec.  12,  in  township  28 
north,  range  13  east,  it  being  40  and  undi- 
vided half  of  80  acres.  Also,  all  the  right, 
title,  and  interest  which  I  have  of,  in,  and 
to  lots  91  and  121,  in  the  town  of  Commerce, 
in  said  county  of  Scott;  and  also  lot  sixty- 
three,  in  the  town  of  Benton,  in  said  coun- 
ty of  Scott." 

The  next  link  in  the  chain  of  plaintiff's 
title  was  a  deed  to  Elizabeth  Crow,  aclinowl- 
edged  October  29,  1870,  executed  by  plaintiff 
as  administrator  of  Albion  Crow,  and  con- 
veying the  lot  in  question. 

The  claim  of  the  defendant  Harris  is  based 
on  a  warranty  deed  for  the  lot  aforesaid, 
executed  November  30,  1877,  by  Elizabeth 
Crow  to  Mary  J.  Harris,  wife  of  said  defend- 
ant Harris. 

1.  The  deed  of  the  collector  of  Scott  coun- 
ty for  the  lot  in  dispute,  executed  to  Eliza- 
beth Crow  in  1867,  was  worthless,  and  con- 
veyed no  title,  and  was  void  on  its  face,  in 
consequence  of  its  failing  affirmatively  to 
show  that  all  the  prerequisites  which  the 
law  had  prescribed,  as  to  the  fact  of  notice 
having  been  given  of  the  delinquency  of  the 
land  for  taxes,  had  been  complied  with  prior 


to  judgment  rendered  by  the  county  court; 
and  in  consequence  of  its  failing  affirma- 
tively to  show  that  advertisement  had  been 
made  of  the  intended  sale  of  the  laud  for 
taxes  in  the  precise  method  required  by  the 
statute.  The  statements  made  by  the  col- 
lector in  his  deed,  that  these  things— these 
jurisdictional  facts— had  been  done  "accord- 
ing to  law,"  or  "in  manner  and  form  as  di- 
rected by  law,"  go  for  nothing  in  the  esti- 
mation of  the  courts.  The  facts  done  must, 
in  such  cases,  be  set  forth,  in  order  that  the 
courts  may  determine  whether  the  respect- 
ive officers  and  courts  have  acted  "accord- 
ing to  law."  Lagroue  v.  Rains,  48  Mo.  53G; 
Spurloek  v.  Allen,  49  Mo.  178;  Large  v.  Fish- 
er, Id.  307. 

The  bill  of  exceptions  shows  that  this  deed 
was  admitted  in  evidence,  despite  the  ol>jec- 
tions  of  the  defendants.  The  judgment  for 
plaintiff,  however,  recites  that  it  was  final- 
ly excluded  from  the  consideration  of  the 
jury,  by  order  of  the  court.  This  recital,  if 
true,  should  have  been  preserved  by  the  bill 
of  exceptions,  the  office  of  which  is  to  pre- 
serve all  matters  of  mere  exception.  I 
judge,  however,  from  the  first  instruction 
asked  by,  and  refused,  the  defendants,  that 
the  court  did  not  regard  the  collector's  deed 
as  void  on  its  face.  It  was  thus  void,  as 
already  seen  from  the  authorities  cited,  and 
no  title  passed  to  Elizabeth  Crow  by  reason 
thereof. 

2.  I  now  come  to  consider  the  effect  of  the 
deed  to  plaintiff"  of  date  March  25,  1868, 
whose  recitals  have  already  been  in  sub- 
I  stance  set  forth;  for  on  this  deed  plaintiff's 
i  paper  title  exclusively  depends.  I  think  it 
quite  too  plain  for  argument  that  the  statu- 
tory covenants  of  "grant,  bargain,  and  sell" 
do  not  extend  to  nor  include  the  lot  in  ques- 
tion. If  this  be  true,  then  the  deed  just 
mentioned,  so  far  as  concerns  lot  63.  is  in 
effect  a  bare  quitclaim  deed,  and  no  after- 
acquired  title  of  Elizabeth  Crow  could  in- 
ure to  the  benefit  of  plaintiff.  Besides,  it 
already  appears  that  at  the  time  the  deed 
of  March  25,  1868,  was  made,  the  only  title 
Elizabeth  Crow  had  in  the  premises  was 
that  of  a  dowress,  whose  dower  remains 
unassigned.  The  authorities  agree  that  in 
such  case,  that  the  legal  title  of  a  dowress 
does  not  pass  by  her  deed.  The  only  right 
or  interest  thereby  passing  Is  one  which 
may  be  enforced  and  effectuated  in  equity. 
1  Washb.  Real  Prop.  (4th  Ed.)  303;  2  Scrib. 
Dower.  40,  43.  Of  course  these  remarks  are 
not  intended  to  apply  to  the  case  of  a 
dowress  who  releases  her  dower  right  to 
the  terre-tenant,  or  one  in  possession  of  the 
lands,  or  to  whom  she  stands  in  privity  of 
estate.     Washb.  supra;    Scrib.  Dower,  40. 

The  only  right  of  interest,  therefore,  which 
plaintiff  acquired  by  reason  of  his  deed,  as 
aforesaid,  was  one  vesting  in  action  only, 
so  far  as  the  views  of  a  court  of  law  are 
concerned.  What  a  court  of  equity  would 
do  in  the  premises  does  not  matter,  as  in 


108 


ESTATES  IN  REAL  PROPERTY. 


this  action  tlie  plaintiff  must  recover  on  the 
legal  title,  and  not  on  unefCectuated  equities. 
3.  Nor  did  the  plaintiff  gain  any  title  to  the 
premises  by  reason  of  the  operation  of  the 
statute  of  limitations,  since  his  possession 
was  not  adverse  and  continuous  for  the  re- 


Wilson  V.  Albert, 


quisite  statutory  period. 
89  Mo.  537,  1  S.  W.  209. 

As  this  cause  was  not  tried  in  conformity 
to  the  views  here  announced,  the  judgment 
is  reversed,  and  the  cause  remanded- 

All  concur. 


I 


DOWER. 


109 


FREE  et  al.  v.  BEATLEY. 

(54  N.  W.  910.  95  Mich.  426.) 

Supreme  Court  of  Michigan.    April  21,  1893. 

Appeal  from  circuit  court,  Van  Burcii 
county,  in  chanceiy;  George  M.  Buck, 
Judge. 

Suit  by  John  W.  Free'  and  :Mulford  D. 
Buskirk  against  jMartha  B.  Boatley  to  remove 
cloud  on  title.  A  decree  was  entered  in  favor 
of  complainants,  and  defendant  appeals.  Af 
firmed. 

Osborn  &  Mills,  for  appellant.  Crane  cV 
Breck,  for  appellees. 

GRANT,  J.  The  land  in  which  defendant 
now  claims  the  right  of  dower  was  sold  un- 
der the  decree  of  this  court  in  Killefer  v.  Mc- 
Lain,  78  Mich.  249,44  N.  W.  Rep.  405,  and  was 
bid  in  by  the  complainant  Free.  The  sale  was 
confirmed,  and  the  commissioner's  deed  exe- 
cuted to  Free,  who  subsequently  deeded  a 
half  interest  therein  to  his  co-complainant. 
Complainants  went  into  possession,  and,  subse- 
quently learning  that  defendant  claimed  an 
interest  in  the  land,  filed  their  bill  to  remove 
the  cloud  from  their  title.  The  facts  neces- 
sary to  a  determination  of  the  question  are 
these:  Defendant's  former  husband,  Mr. 
Nash,  was  the  owner  in  fee  of  the  land  here 
in  controversy,  upon  which  was  a  water- 
power  saw  and  stave  mill.  One  Briggs  was 
also  the  owner  in  fee  of  adjoining  lands,  upon 
which  were  a  water  power  and  grist  mill. 
These  properties  were  of  about  equal  value. 
January  2,  1882,  Briggs  and  Nash  entered 
into  a  copartnership  agreement,  by  which  they 
imited  these  two  properties,  and  agreed  to 
carry  on  the  entire  business  as  copartners. 
After  specifying  the  character  of  the  business 
to  be  carried  on,  the  written  agreement  stated 
as  follows:  "For  that  purpose  we  do  agree 
and  hereby  actually  put  into  the  said  busi- 
ness the  grist  and  flonring  mills  now  owned 
by  said  Briggs,  *  *  *  known  as  the  'Cen- 
tral Mills,'  and  the  realty,  machinery,  and  at- 
tachments thereto,  and  the  property  known 
as  'Nash's  Stave  and  Heading  Factoiy  and 
SawmiU,'  and  the  machinery  in  the  same  con- 
nected therewith,  and  also  two  himdred  and 
forty  acres  of  land  owned  by  said  Nash; 
*  *  *  each  of  said  parties  to  quitclaim  to 
I  he  other  one  equal  undivided  half  of  the 
lands  and  property  above  described  belonging 
to  each,  so  that  the  title  to  said  property 
shall  be  vested  in  said  parties  jointly."  Pur- 
suant to  this  agreement,  deeds  were  executed 


and  exchanged  upon  the  same  day,  in  the  ex- 
ecution of  which  their  wives  respectively 
joined.  Defendant  understood  the  entire 
transaction,  and  the  purpose  for  which  these 
deeds  were  executed.  The  partnership  was 
dissolved  by  the  death  of  Nash.  Briggs  still 
continued  to  cari-y  on  the  business  until  his 
death.  Subsequently  his  executors  filed  a  bill 
in  chancery  for  an  accounting,  for  a  sale  of 
the  partnership  assets,  and  for  a  division  of 
the  surplus,  if  any  remained.  Killefer  v.  Mc- 
Lain,  70  Mich.  508,  38  N.  W.  Rep.  455.  The 
court  there  held  that  the  whole  of  the  real 
estate  was  put  into  the  firm,  and  constituted 
firm  assets.  Defendant  was  made  a  party 
defendant  to  that  suit.  She  made  no  defense, 
and  as  to  her  the  bill  was  taken  as  confessed. 
She  was  appointed  guardian  ad  litem  for  her 
infant  child  in  that  suit,  and  was  a  witness. 

1.  By  the  agreement  of  copartnership,  and 
the  deeds  executed  pursuant  thereto,  the  en- 
tire land  of  Briggs  and  Nash  became  partner- 
ship property.  The  wife  of  each  thereby  be- 
came entitled  to  dower  in  the  entire  land 
after  the  payment  of  the  partnership  debts. 
The  entire  land  was  used  and  treated  as  part- 
nership property.  The  defendant  so  under- 
stood it,  for  she  testified  on  the  hearing  iu 
the  other  suit  that  she  imderstood  that  she 
and  her  child  were  entitled  to  half  of  the  mill 
property. 

2.  She  was  made  a  party  to  the  former 
suit.  If  she  claimed  any  interest  in  the  land 
it  was  then  her  duty  to  assert  it,  and  have 
that  interest  determined.  The  sole  object  in 
maldng  her  a  party  was  to  ascertain  her 
rights  therein,  if  she  claimed  any.  The  court 
expressly  determined  and  decreed  that  the 
land  was  a  part  of  the  firm  assets.  Free, 
the  pm'chaser,  therefore  had  the  right  to 
assume  that  she  neither  claimed  nor  had  any 
interest  in  the  property  except  that  arising 
from  partnership  relations.  Even  had  she 
then  been  possessed  of  any  right  of  dower 
independent  of  the  partnership,  she  must  be 
held  estopped  from  now  asserting  it,  because 
she  did  not  assert  it  when  she  had  the  oppor- 
timity  to  do  so.  She  was  a  proper  party  to 
the  suit,  because  she  had  a  contingent  right 
of  dower  in  the  property.  Free  was  an  in- 
nocent purchaser,  and  he  and  his  grantees 
will  be  protected.  He  purchased  in  reliance 
upon  a  decree  rendered  in  a  smt  wherein  all 
persons  interested  in  the  property  were  par- 
ties, and  which  was  brought  for  the  express 
purpose  of  adjudicating  and  determining 
all  ttieir  rights.  Decree  affirmed,  with  costs. 
The  other  justices  concurred. 


110 


ESTATES  IN  EEAl.  PROPERTY. 


McKELVEY  v.  McKELVEY. 

(70  N.  W.  582.) 
Supreme  Court  of  Michigan.    April  6,  1897. 

Appeal  from  circuit  court,  Barry  county, 
!n  chancery;  George  M.  Buck,  Judge. 

Bill  by  Johnson  McKelvey,  by  George  O. 
Dean,  his  general  guardian,  against  Kate 
McKelvey,  for  an  injunction.  From  a  de- 
cree for  plaintifE,  defendant  appeals.  Af- 
firmed. 

Walter  S.  Powers,  for  appellant  Philip  T. 
Colgrove,  for  appellee. 

HOOKER,  J.  The  defendant,  a  young 
woman,  married  Johnson  McKelvey  some 
years  a.go.  At  that  time  he  was  possessed 
of  considerable  property,  and  was  quite  old, 
and  at  his  request  she  deeded  to  him  her 
dower  interest  in  40  acres  of  land.  Subse- 
quently she  filed  a  bill  for  divorce  and  ali- 
mony, and  prayed  that  "he  might  be  required 


to  deed  to  her  the  premises  mentioned.  Ar- 
rangements were  made  whereby  she  agreed 
to  accept  a  deed  of  said  parcel  and  $35  in 
cash  in  lieu  of  all  interest  in  his  estate.  It 
took  the  form  of  a  stipulation,  and,  although 
dower  was  not  specifically  mentioned,  it  pro- 
vided that  such  payment  and  conveyance 
should  be  in  full  for  all  expenses  and  ali- 
mony against  him.  The  complainant's  tes- 
timony shows  that  she  understood  that  it 
was  in  full  settlement  of  all  claims  upon 
him.  That  also  appears  from  the  testimony 
of  other  witnesses.  She  afterwards  brought 
ejectment  to  recover  dower  in  the  lands  of 
McKelvey,  and  this  bill  is  filed  to  restrain 
such  suit  The  circuit  judge  granted  the 
prayer  of  the  bill,  and  an  examination  of  the 
testimony  satisfies  us  of  the  propriety  of  his 
decree.  The  case  is  within  the  rule  of  Owen 
V.  Yale,  75  Mich.  256,  42  N.  W.  817,  and 
Adams  v.  Story,  135  lU.  448,  26  N.  E.  582. 
The  decree  is  aUirmed,  with  costs  of  both 
courts.    The  other  justices  concurred. 


HOMESTEAD. 


Ill 


BLACK  et  al.  v.  SINGLEY. 

(51  N.  W.  704,  91  -Mich.  50.) 

Supreme  Court  of  Michigan.     March  18,   1892. 

Error  to  circuit  court,  St.  Joseph  county; 
Noah  P.  Loveridge,  Judge. 

Ejectment  by  Sarah  E.  Black  and  others 
against  John  Siugley.  Defendant  had  judg- 
ment, and  plaintiffs  bring  error.  Reversed, 
and  judgment  entered  for  plaintiffs. 

Howell,  Carr  &  Barnard,  for  appellants. 
R.  R.  Pealer  and  G.  P.  Doan,  for  appellee. 

McGRATH,  J.  This  is  ejectment  by  the 
lieirs  of  Eliza  Dickinson,  claiming  under  a 
deed  from  Abner  :Moore,  executed  in  1852. 
Eliza  Dickinson  gave  back  a  life  lease. 
Moore  died  in  18(39,  leaving  defendant  in  pos- 
session, and  this  suit  was  commenced  in 
1870.  Moore's  wife  died  some  time  between 
1855  and  1857.  Moore  came  to  Michigan 
some  time  in  1834,  leaving  his  wife  and  four 
children  in  Pennsylvania.  Two  of  the  chil- 
dren came  to  Michigan  and  lived  for  a  time 
with  Moore,  but  the  wife  never  came,  and 
never  resided  in  Michigan;  nor  Is  there  any 
evidence  that  anj-  correspondence  ever  pass- 
ed between  husband  and  wife;  nor  does  it 
appear  that  Moore  ever  returned  to  Pennsyl- 
vania, even  to  attend  his  wife's  funeral. 
One  witness  who  knew  the  family  in  Penn- 
sylvania, and  had  removed  to  Michigan,  and 
lived  in  the  neighborhood,  says  that  in  1842 
or  1843  Moore  said  to  him  that  "when  he  got 
ready  and  means  he  expected  to  fetch  his 
family  out."  Other  witnesses  say  that  in 
1844  and  1845,  and  again  in  1858,  1859,  and 
1860,  Moore  said  that  he  had  left  Penn- 
sjivania  with  the  intention  of  never  living 
with  her;  that  he  could  not  live  with  her 
there,  and  would  not  here.  There  is  no 
evidence  that  his  wife  ever  expected  or 
intended  to  live  in  Michigan.  Eliza  Dick- 
inson lived  with  Moore  as  his  housekeeper 
from  1847  to  1867.  The  consideration  nam- 
ed in  the  deed  is  $800.  The  trial  court  in- 
structed the  jury  as  follows:  "It  is  conced- 
ed, gentlemen,  by  the  evidence,  that  this  wife 
never  lived  in  the  state  of  Michigan,  but  that 
she  lived  in  the  state  of  Pennsylvania.  Now, 
the  question  which  I  submit  to  you  is  wheth- 
er this  forty  acres  of  land  in  question  was, 
at  the  time  it  was  conveyed  or  attempted  to 
be  conveyed  to  Eliza  Dickinson,  the  home- 
stead of  Abner  Moore,  and  whether  he  in- 
tended it  as  his  home.  If  you  find  that  it 
was  his  homestead,  and  that  he  intended  that 
forty  acres  of  land  for  his  home,  then  I  in- 
struct you  that  your  verdict  must  be  for  the 
defendant.  *  *  *  The  plaintiffs  claim  that 
this  was  not  the  homestead  of  Abner  Moore; 
that  he  did  not  intend  it  for  a  home;  that  he 
was  not  living  with  his  wife,  and  did  not  in- 
tend to  live  with  her,  but  that  he  had  aban- 
doned her  when  he  came  from  Pennsylvania 
here;  and  that  he  did  not  regard  it  as  a  home- 
stead.    On   the   other   hand,    the   defendants 


contend  that  he  came  to  the  state  In  1834, 
and  some  years  afterwards  he  went  on  this 
piece  of  laud,  then  in  a  wild  state,  and  im- 
proved and  put  buildings  upon  it,  and  intend- 
ed to  make  it  his  home.  The  evidence  which 
was  admitted— and  there  was  some  of  it  giv- 
en on  both  sides  as  to  whether  he  intended 
to  bring  his  wife  here — may  be  taken  into 
consideration  by  you  upon  this  question  as 
to  whether  he  intended  to  make  this  forty 
acres  his  home.  The  defendants,  as  I  have 
stated  to  you,  allege  that  this  was  his  home- 
stead; that  he  intended  to  make  it  his  home- 
stead; and  any  attempted  alienation  of  it 
without  the  signature  of  his  wife  to  the  deed 
of  alienation  would  render  that  deed  to  Mrs. 
Dickinson  void.  I  instruct  you  that  the  bur- 
den of  proof  would  be  upon  the  defendants 
to  show  that  this  was  a  homestead,  and  in- 
tended by  Abner  Moore  to  be  his  home,  be- 
cause that  is  the  defense  they  set  up  as 
against  this  ownership  by  Abner  Moore  and 
the  conveyance  to  Eliza  Dickinson.  *  *  * 
If  you  find  that  he  was  a  married  man  at  the 
time  he  alienated  it,  or  attempted  to  alienate 
it,  to  Eliza  Dickinson,  and  intended  it  for  a 
homestead,  then  I  instruct  you  that  the  deed 
to  Eliza  Dickinson  would  be  void,  because 
his  wife,  notwithstanding  she  was  not  domi- 
ciled in  this  state,  but  in  the  state  of  Penn- 
sylvania, did  not  join  him  in  the  deed.  If 
you  so  find  that  this  was  his  homestead,  and 
he  intended  it  to  be  at  this  time,  then,  as  I 
instructed  you  before,  your  verdict  shall  be 
for  the  defendant.  If  you  find  it  was  not  a 
homestead,  that  it  was  not  intended  by  him 
to  be  a  homestead,  at  the  time  he  made  the 
deed  to  Eliza  Dickinson,  then  I  instruct  you 
that  you  would  convey  a  good  title,  and  that 
these  plaintiffs  would  be  entitled  to  recover." 
Under  these  instructions  the  jury  found  for 
defendant,  and  plaintiffs  appeal. 

The  instructions  were  clearly  erroneous. 
Tlie  case  is  ruled  by  Stanton  v.  Hitchcock. 
64  Mich.  316,  31  X.  W.  395.  Eliza  Dickin- 
son was  a  bona  fide  purchaser  for  value.  In 
view  of  the  conveyance  to  her,  it  cannot  be 
claimed  that  Moore  intended  to  assert  or  pre- 
serve his  wife's  homestead  rights  in  these 
premises.  As  is  said  in  the  case  cited:  "Un- 
der our  legal  regulations,  no  imaginary  or  im- 
puted intention  can  supplant  the  actual  in- 
tent. It  would  be  little  short  of  absurdity 
to  hold  that  Hitchcock  could  at  the  same 
time  contemplate  the  occupancy  of  the  house 
as  the  home  of  his  second  wife  and  also  of 
the  first."  "The  object  of  the  constitution  is 
not  ambiguous.  It  is  to  protect  that  dwel- 
ling which  has  been  the  actual  home  of  the 
family  from  such  disturbance  as  will  make 
them  lose  its  enjoyment.  It  is  confined,  by 
its  language,  to  the  property  actually  occu- 
pied as  a  homestead  by  a  resident  of  Mich- 
igan; and,  if  the  owner  has  a  family,  it  is 
the  actual  home  of  that  family  which  is  pro- 
tected from  seizure  by  creditors.  There  is 
nothing  in  the  statute  which  contemplates 
that  a  wife  who  has  never  lived  on  the  prem- 


112 


ESTATES  IN  REAL  PKOPERTY. 


ises,  or  claimed  to  live  there,  may,  after  her 
husband's  death,  claim  such  an  interest  by 
relation  as  will  avoid  his  dealings  with  prop- 
erty which  he  never  meant  should  be  the 
home  of  the  absentee,  however  much  he  may 
have  wronged  her.  The  statute  which,  after 
a  husband's  death,  secures  rights  to  a  widow, 
is  confined  expressly  to  resident  widows." 
"The  first  wife  never  contemplated  it  as  her 
and  her  husband's  joint  home.  *  *  *  xt  must 
be  remembered,  not  only  that  the  character 
of  any  property  as  a  homestead  depends  on 
intention,  but  that  it  may  be  entirely  de- 
stroyed by  a  removal  of  residence.  There  is 
nothing  in  the  law  to  prevent  such  removal 
at  any  time,  and  after  it  the  property  stands, 
like  any  other  property,  liable  to  sale  or  any 
other  disposal  by  the  owner  at  his  pleasure. 
Under  our  laws,  the  sale  by  a  husband  whose 
wife  is  non-resident  carries  the  property  free 
from  any  right  of  dower.  Actual  non-resi- 
dence in  such  case,  in  spite  of  the  marital  re- 


lations, cuts  off  any  control  over  the  sale  of 
a  complete  title.  *  *  *  The  law  would  be 
grossly  tyrannical  if  it  ties  the  husband's 
hands  in  the  one  case  at  least,  and  it  cannot 
be  possible  that  such  consequences  could 
have  been  designed  by  the  constitution.  It 
was  designed  to  protect  those  who  had  sub- 
jected themselves  to  its  laws,  and  acted  in 
reliance  on  them,  but  not  to  treat  as  homes 
what  are  not  homes,  or  give  powers  to  non- 
residents which  could  not,  under  any  circum- 
stances, be  of  any  use  to  them  personally." 
The  husband  and  wife,  living  separate  and 
apart  under  circumstances  such  as  these, 
might  each  claim  a  homestead,  the  one  in 
Pennsylvania  and  the  other  in  Michigan,  but 
neither  could  claim  both.  Plaintiffs  were  en- 
titled to  judgment.  The  judgment  is  there- 
fore reversed,  and  judgment  entered  here  for 
plaintiffs,  with  costs  of  both  courts,  and  the 
record  remanded.  The  other  justices  con- 
curred. 


HOMESTEAD. 


118 


HOFFMAN  V.  BUSCHMAN  et  al. 

(55  N.  W.  458,  95  Mich.  538.) 
Supreme  Court  of  Michigan.     May  31,  1893. 

Error  to  circuit  court,  St.  Clair  county; 
William  T.  jNIitcholl,  Judge. 

Ejectment  by  .Jolin  M.  Hoffman  against 
Bernard  Busehman,  Careten  Buschman,  and 
Henry  Alirens.  There  was  a  judgment  In 
plaintiff's  favor,  and  defendants  bring  error. 
Affirmed. 

James  L.  Coe,  for  appellants.  Charles  K. 
Dodge,  for  appellee. 


HOOKER,  C.  J.  Plaintiff  brought  eject- 
ment to  obtain  possession  of  the  undivided 
half  of  certain  lands,  described  as  follows, 
viz.:  "The  southeast  quarter  of  the  north- 
west quarter,  and  the  southwest  quarter  of 
the  northeast  quarter,  of  section  thirty -four, 
town  seven  north,  range  sixteen  east."  The 
case  was  tried  without  a  juiT,  and  a  writ- 
ten finding  of  fact  and  law  was  filed.  The 
brief  of  counsel  for  the  appellants  rehes  upon 
two  points  to  reverse  the  judgment,  viz.: 
First.  The  wife  of  Bernard  Buschman  was 
not  made  a  pai'ty.  Second.  The  sale  imder 
the  execution,  upon  which  plaintiff  claims 
title,  was  void.  Exceptions  upon  each  of 
the  findings  of  fact  and  law  were  filed.  The 
findings  of  fact  cannot  be  disturbed,  for 
the  reason  that  the  record  does  not  show 
that  all  of  the  testimony  taken  upon  the 
trial  was  included. 

Tlie  court  found  that  the  premises  were 
©■mied  m  common  by  Bernard  Buschman 
and  Carsten  Buschman;  "that,  at  the  time  of 
the  commencement  of  the  action,  defendant 
Ahrens  was  in  possession  of  the  whole  of 
said  premises,  under  and  as  the  tenant  of 
said  Bernard  and  Cai-sten  Buschman; 
*  *  *  that,  for  some  time  previous,  and  up 
to  the  year  1884,  said  Bernard,  with  his  wife 
and  family,  lived  upon  said  lands,  but  in 
that  year  he  removed  therefrom  to  the  city 
of  Port  Huron,  where  he,  with  his  wife  and 
family,  have  since  lived,  and  where  he  votes 
and  claims  his  residence;  but  that  he  left 
some  of  his  household  effects  on  the  lands 
claimed,  and  has,  with  said  Carsten,  occu- 
pied as  a  tenant."  Under  this  finding  it  is 
claimed  that  the  defendant  Bernard  and  his 
GATES.R.P.— 8 


wife  should  be  found  to  have  homestead 
rights  in  the  west  40  acres.  That  these  par- 
ties lived  somewhere  upon  the  premises,  and 
had  homestead  rights  in  some  part  thereof, 
up  to  April,  1SS4,  is  clear;  but,  at  the  time 
of  this  levy  and  s:ile,  they  had  hved  in  Port 
Huron  for  upward  of  five  years.  "When  eject- 
ment was  brouglit,  Bernard  asserted  home- 
stead rights  in  himself  and  wife.  The  bur- 
den of  proving  this  right  is  upon  the  de- 
fendant. Amphlet  v.  Hibbard,  29  Mich. 
298.  The  retention  of  homestead  rights, 
though  the  party  live  elsewhere  tempoiu- 
rily,  is  possible.  It  is  largely  a  matter  of 
continiiing  intent,  and  is  a  fact  to  be  proved 
like  any  other  fact.  There  is  nothing  in  tlie 
finding  that  shows  the  existence  of  such 
intent,  but,  on  the  contrary,  all  facts  found 
are  inconsistent  with  such  design,  and,  in  the 
absence  of  any  other  facts,  justify  the  find- 
ing of  law  that  the  homestead  was  aban- 
done(J. 

Plaintiff  derived  title  through  an  execution 
sale  upon  a  transcript  judgment.  The  pro- 
ceedings are  conceded  to  have  been  regular, 
with  two  exceptions.  The  description  in 
the  levy  wasi  as  follows,  viz.:  "The  imdi- 
vided  one-half  of  the  following  described 
land,  to  wit:  The  southeast  quarter  of  the 
northwest  quarter,  and  the  southwest  quar- 
ter of  the  northeast  quarter."  In  the  subse- 
quent proeeetlings  the  description  was  as 
follows,  viz.:  "The  undivided  one-half  of 
the  southeast  quarter  of  the  northwest  quar- 
ter, and  the  southwest  quarter  of  the  north- 
east quarter;"  these  proceedings  showing 
that  the  interest  of  Bernard  Bu.schman  was 
involved.  We  think  there  is  no  room  for 
question  over  these  descriptions,  which  are 
identical,  and  could  not  mislead  any  one. 

A  further  point  is  made  over  the  sale,  the 
land  having  been  sold  as  one  parcel,  which 
counsel  for  defendants  claim  was  in  violation 
of  How.  St  §§  6116,  6117.  If  two  contig- 
uous 40-acre  parcels,  separated  by  a  quarter 
line,  and  occupied  as  one  farm,  can  be  con- 
sidered within  the  prohibition  of  the  stiit- 
ute,  such  sale  was  an  irregularity,  and  can- 
not be  questioned  in  an  action  of  ejectment. 
Cavenaugh  v.  Jakeway,  Walk.  (Mich.)  o44, 
and  cases  cited;  Blair  v.  Compton,  33  Mich. 
423;  Campau  v.  Godfiy,  18  Mich.  45.  The 
judgment  must  be  affirmed.  The  other  jus- 
tices concurred. 


114 


ESTATES  IN  REAL  PROrERTY. 


MYERS  V.  WEAVER  et  al. 

(59  N.  W.  810,  101  Mich.  477.) 
Supreme  Court  of  Michigan.     July  10,  1894. 

Appeal  from  circuit  court,  Kalamazoo 
county,  in  chancery;  George  M.  Buck,  Judge. 

Bill  by  Nellie  J.  Myers  against  Charles 
V.  Weaver  aud  another  to  remove  a  cloud 
from  title.  Judgment  for  defendants,  and 
plaintiff  appeals.     Reversed. 

Volney  H.  Lockwood,  for  appellant  Adel- 
bert  D.  Harris  (Alfred  S.  Frost,  of  counsel), 
for  appellees. 

McGRATH,  C.  J.     Complainant's  husband, 
in  July,   1892.   sold  a  house  and   lot  which 
had    been    occupied    as    a    homestead,    and 
bought  an  adjoining  lot,  the  title  to  which 
was  placed  in  complainant    A  suit  was  com- 
menced   against   complainant  and    her   hus- 
band in  November,  1892,  resulting  in  a  judg- 
ment by  default  in  December,  1892,  upon  a 
promissory    note,    given    in    July,    1891,    for 
a  debt  of  the  husband's.     A  levy  was  made 
upon    complainant's    lot     This    bill    is    filed 
to  remove   the  cloud,   and  alleges   that  the 
lot  levied  upon   was   bought  for   use   as   a 
homestead.     The  lot  was  not  built  upon  at 
the  time  of  the  levy,  and  the  sole  question 
is  whether  it  was  bought  and  held  for  that 
purpose.      It     appears     that     complainant's 
husband,  John  Myers,  had  in  18SS  conveyed 
to    defendant   Weaver    a   certain   other    lot, 
and  some  time  afterwards  Weaver  claimed 
that  Myers  had,  at  the  time  of  the  convey- 
ance, misrepresented  the  amount  of  a  mort- 
gage subject  to  which  the  conveyance  was 
made.     Myers   insisted   that   there    was   no 
misrepresentation,   but  that  the  amount  of 
the  mortgage  was  correctly  given,  and  that 
he  had  agreed  at  the  time  of  the  convey- 
ance   to    reduce    it    by    payment     In    July, 
1891,    Myers   and    complainant  joined    in    a 
note  to  Weaver  for  the  difference,  and  as- 
signed to  him  as  collateral  a  certain  mort- 
gage, which   was  held  by  complainant  and 
her    husband    against    a    farm    which    they 
had    owned,    and    sold    in    November,    1888. 
The  mortgage  so  assigned   was   subject   to 
other  mortgages,  and,  at  the  time  of  the  as- 
signment, a  prior  mortgage  was  in  process 
of  foreclosure.     The  farm  was  subsequent- 
ly sold  in  that  proceeding,  and  brought  less 
than    the    amount    of    the    prior    mortgage. 
The   written   opinion  of  the  trial  court  ap- 
pears  in   defendants'    brief,   from   which    it 
is    clear    that   the    circumstances    connected 
with   the   sale  of   the   lot   to   Weaver,    and 
the  subsequent  assignment  of  the  mortgaged 
secm'ity,   were  relied  upon  as  affecting  the 
credit   given  to   the   testimony   of  the  com- 
plainant and  her  hiisband. 


We  do  not  find  in  the  record  any  reason 
for  discrediting  complainant's  testimony.    It 
is  conceded  that  the  lot  sold  to  Tittle  was 
the    homestead.      The   title  to  the  lot    sold 
to  Weaver  was  in  John  Myers.     Complain- 
ant   is    not    connected    with    any    misrepre- 
Bentations    made    respecting    the    mortgage, 
and  it  does  not  appear  that  she  knew  any- 
thing  about   the   amount   thereof.     She   re- 
ceived no  part  of  the  proceeds  of  that  sale, 
nor  is  she  connected  with   any  representa- 
tions   made    concerning    the    mortgage    that 
was  assigned  as  collateral  to  the  note  sued 
upon.     It   appears   that   the   house   and   lot 
sold    to    Tittle    were    incumbered    for    $900; 
that  the  pm-pose  of  the  sale  was  to  obtain 
relief    from    that    incumbrance,    and    get    a 
cheaper   home;    that   the   intention    was   to 
build  and  occupy  a  house  upon  the  lot  in 
question;     that,    before    the    suit    upon    the 
note  was  brought,  the  location  of  the  house 
had  been  staked  out,  stone  had  been  drawn 
upon  the  lot  for  use  in  construction  of  the 
cellar,  a  party  had  been  engaged  to  excavate, 
and  negotiations  had  been  had  with  a  build- 
er relative  to  the  construction  of  the  hoiLse, 
and  there  is  evidence  that  the  contract  had 
been    actually    prepared.     Respecting    these 
matters,  complainant's  testimony  is  corrobo- 
rated by  witnesses  other  than  the  husband. 
A   real-estate   agent   testified    that   he    was 
told   by    Myers   at   one   time    that    they    de- 
sired to  sell  the  lot,  but  the  same  witness 
testifies  that  Myers  told   him   at  the  same 
time   "that   he   was  at   work  at  the  paper 
mill;    that  it  was  going  to  be  a  ways  for 
him  to  go  over  there,  and  he  made  up  his 
mind  he  would  sell  it,  and  buy  over  there, 
or  biuld,  or  sometbing  of  that  kind."     The 
attorney    who    had   the    note   in   his    hands 
for  collection  says  that,  a  short  time  before 
the  suit  was  brought,  he  saw  complainant, 
and  had  a  conversation  vdth  her  respecting 
the  payment  of  the  note,  in  which  he  asked 
her  how  she  came  to  buy  the  lot  and  she 
replied  that  she  bought  it  for  speculation; 
that  he  then  asked  her  what  she  was  going 
to  do   with  it,  and  she  replied  that,  if  she 
got  a  chance,  she  would  sell  it;   "and  I  even 
went  so  far  as  to  ask  her  if  she  was  going 
to  build  upon  it  and  she  said  she  was  not." 
Complainaat    denies    that    she    made    these 
statements.     The  clear  weight  of  testimony 
is,  however,  in  favor  of  complainant    The 
testimony  of  several    witnesses,   other  than 
the  parties  in  interest  as  to  things  actually 
done    upon   the    lot   some   time   before    the 
commencement   of    suit    tends    strongly    to 
corroborate     the     complainant's     contention 
that  the  lot  was  held  for  use  as  a  homestead. 
The  decree  below  is  therefore  reversed,  aud 
a  decree  entered  here  for  complainant     The 
other  justices  concurred. 


HOMESTEAD. 


115 


HITCHCOCK  V.  MISXER  et  al. 
(G9  N.  W.  22G.) 
Supremo  Court  of  Michigan.      Dec.  IS,  1896. 
Appeal  from  circuit  court,  jMu.sl<o?:on  coun- 
ty, in  chancery;   Fred  J.  Russell,  .Judge. 

Bill  by  Joseph  A.  Hitchcock  against  Porter 
P.  Misner  and  others  to  set  aside  an  attach- 
ment levy.  There  was  decree  for  complain- 
ant, and  defendants  appeal.     Affirmed. 

Brown  &  Lovelace,  for  appellants.  Nelson 
De  Long,  for  appellee. 

MOORE,  J.  This  is  a  proceeding  to  set 
-aside  an  attachment  levy  made  by  defendants 
upon  one-half  of  a  city  lot  in  Muskegon.  The 
record  shows  that  the  attachment  was  made 
October  5,  1895,  by  creditors  of  a  firm  of 
which  complainant  was  a  member.  This  half 
lot,  which  was  known  as  "No.  12  Muskegon 
Avenue,"  was  bought  by  complainant,  who 
was  then  a  married  man,  in  IS'JO.  It  was  oc- 
cupied by  himself  and  family  for  about  SY2 
years.  About  a  year  and  a  half  before  the 
levy,  complainant  and  his  family  moved  to 
No.  53  Muskegon  avenue,  into  a  house  then 
occupied  by  his  father  and  his  family,  and 
continued  to  reside  there  until  after  the  levy 
upon  the  property  at  No.  12  Muskegon  avenue 
was  made.  At  the  time  complainant  moved 
to  No.  53  Muskegon  avenue,  his  father  deeded 
the  property  located  there  to  him.  There  was 
a  mortgage  upon  the  property  of  about  $800, 
and  some  back  taxes.  It  is  the  claim  of  com- 
plainant that  he  never  intended  to  abandon  his 
homestead  at  No.  12,  but  that  he  and  his  fam- 
ily always  regarded  it  as  his  homestead;  that 
he  moved  to  No.  53  to  enable  him  to  care  for 
his  father,  who  was  very  old,— the  house  at 
No.  12  not  being  large  enough  to  accommo- 
date both  families.  It  is  also  his  claim  that, 
when  No.  SS  was  deeded  to  him,  his  father 
was  not  able  to  pay  the  mortgage  and  taxes, 
and  was  afraid  he  would  lose  the  prop;>rty. 
He  also  claims  that  the  arrangement  between 
his  father  and  himself  at  the  time  of  the  mak- 
ing of  the  deed  was  that  the  complainant 
should  pay  the  mortgage  and  taxes,  and  tliat, 
when  he  could  sell  the  property  without  sac- 
rificing it,  he  was  to  do  so,  and,  after  reim- 


bursing himself,  was  to  pay  the  surplus  to 
his  father;  that  he  expected  to  make  the 
sale,  and  to  carry  out  his  agreement.  It  was 
the  claim  of  the  defendants  that,  when  com- 
plainant moved  to  No.  53  Muskegon  avenue, 
he  intended  to  abandon  his  home  at  No.  12 
Muskegon  avenue,  and  that  his  return  to  No. 
12  was  because  he  was  afraid  that  his  cred- 
itors would  levy  upon  it,  and  was  for  the 
piu-pose  of  defrauding  his  creditors,  and  that 
by  giving  mortgages  to  his  mother-in-law  up- 
on both  pieces  of  property  for  an  amount 
largely  in  excess  of  his  debt  to  her,  which 
mortgages  were  signed  by  complainant's  wife, 
he  has  shown  his  purpose  to  defraud  his 
creditors,  and  that  these  acts  of  the  complain- 
ant and  his  wife  characterize  them  as  persons 
whose  testimony  ought  not  to  be  believed. 
The  case  was  tried  in  open  court,  and  the 
circuit  judge  granted  a  decree  according  t) 
the  prayer  of  the  bill.  The  complainant,  his 
wife,  and  his  father  all  gave  test'mony  tend- 
ing to  establish  the  truth  of  complainanfs 
claim.  The  defendants  controverted  this  tes- 
timony. 

In  Hoffman  t.  Buschman,  95  Mich.  539.  55 
N.  W.  458,  Justice  Hooker  held  that  "the  re- 
tention of  homestead  rights,  though  the  party 
live  elsewhere  temporarily,  is  possible.  It  is 
largely  a  matter  of  continuing  intent,  and  is  a 
fact  to  be  proved  like  any  other  fact."  In 
Kaeding  v.  Joacliimsthal,  98  Mieh.  78,  56  N. 
W.  1101,  it  was  held,  in  a  case  where  the  par- 
ties had  been  absent  from  the  homestead  six 
years,  that,  where  there  was  a  continuing  in- 
tent to  return  to  their  home  after  the  object 
of  their  temporary  absence  should  have  be  n 
attained,  such  intent,  if  it  existed,  protected 
the  homestead.  These  ca.ses  are  collated  in 
the  decision  just  quoted.  See,  also,  the  case 
of  Myers  v.  Weaver,  101  Mich.  477,  59  N.  W. 
810.  The  circuit  judge  had  the  witnesses  be- 
fore him.  While  there  were  some  things  done 
by  the  complainant,  in  his  effort  to  keep  his 
creditors  from  reaching  his  property,  that  are 
open  to  criticism,  we  are  not  inclined  to  say 
that  the  conclusion  of  the  circuit  judge  that 
the  property  was  exempt  from  levy  is  eiTO- 
neous.  The  decree  is  affirmed,  with  costs. 
The  other  justices  concurred. 


116 


ESTATES   IN   REAL  PROPERTY. 


CARUTHERS  et  al.  v.  CARUTHERS. 

(4  Brown,   C.  C.  500.) 

Court  of   Chancery.  1794. 

Mr.  Graham  and  Mr.  Stratford,  for  plain- 
tiffs. Mr.  Lloyd  and  Mr.  Agar,  for  defend- 
ant. 

ARDEN,  M.  R.  This  ia  a  case  of  great  im- 
portance. The  prayer  of  the  bill  is,  that  the 
defendant,  the  widow,  may  be  declared  not  to 
be  entitled  to  any  right  of  dower,  or  free  bench, 
or  thirds  of  the  personal  estate  of  the  intestate, 
her  husband,  but  to  be  debarred  of  the  same 
by  the  provision  made  her  by  the  settlements, 
on  the  marriage;    and  the  case  is  this: 

Previous  to  the  marriage  of  the  intestate 
with  the  defendant,  who  was  an  infant  of  the 
age  of  seventeen,  a  certain  estate  which  was  in 
the  possession  of  his  mother  was  settled  on  the 
mother  for  life,  remainder  to  the  husband  for 
life,  remainder,  if  she  should  survive  the  moth- 
er and  husband,  to  the  intended  wife  for  life, 
as  part  of  the  jointure  and  provision  intended 
to  be  made  and  secured  for  her,  and  in  lieu, 
bar,  recompense,  and  full  satisfaction  of  all  de- 
mands, or  thirds  at  common  law,  or  by  custom 
or  otherwise,  of  all  and  every  the  messuages, 
&c.,  as  the  husband  might  during  the  coverture 
be  seised  of.  "No  notice  is  taken  in  this  settle- 
ment what  was  to  be  the  other  part  of  the 
jointure  or  provision  to  be  made  for  her;  but 
also  before  the  marriage,  Thomas  Palling,  who 
was  the  uncle  of  the  husband,  made  a  surren- 
der of  copyhold,  which  was  recited  to  be  for 
making  some  further  provision  for  the  mar- 
riage, which  was  to  the  use  of  himself  for  life, 
remainder  to  the  husband  for  life,  remainder 
to  the  wife  for  life,  if  she  should  so  long  con- 
tinue a  widow.  It  does  not  state  it  to  be  in 
bar  of  dower,  but  it  is  impossible  not  to  see, 
that  it  was  that  further  provision  which  was 
referred  to  in  the  former  deed;  and  the  ques- 
tion is,  whether  she  is  not  bound  to  take  these 
provisions  in  bar  of  dower. 

The  husband  afterwards  acquired  a  larger 
copyhold  estate,  in  which,  by  the  custom  of  the 
manor,  she  takes  the  whole  for  life. 

It  is  contended,  that  by  the  case  of  Drury  v. 
Drury,  or  Drury  v.  The  Earl  of  Bucks  (by 
which  name  it  is  reported  in  5  Brown,  Pari. 
Cas.),  this  principle  has  been  determined,  that 
an  infant  is  bound  at  law  by  a  jointure,  and 
in  equity  will  be  bound  by  any  covenant  for 
securing  a  jointure,  or  by  any  collateral  satis- 
faction, whether  the  same  be  of  freehold  or 
not:  that  the  law  has  given  guardians  author- 
ity to  bind  infants  by  such  a  settlement. 

To  the  propositions  thus  largely  laid  down,  I 
acknowledge  I  must  make  some  objection.  2 
Macph.  Inf.   (London  Ed.)  523,  524. 

It  is  said,  that  great  judges  have  laid  it  down, 
that  by  such  a  settlement,  made  during  the  in- 
fancy of  a  female  infant,  her  own  estate  would 
be  liouaid,  and  for  this  Oanuel  v.  Buckle,  2  P. 
Wms.  242,  and  Harvey  v.  Ashley,  3  Atk.  607, 
have  been   cited. 

But  in   those   cases   this  was   not  the  point 


decided,  although  something  like  the  principle- 
is  laid  down,  and  it  appears  to  have  been  the 
opinion  of  those  judges,  that  such  was  the 
power  of  guardians,  and  that,  having  the  power 
of  marrying  their  wards,  they  must  have  that 
of  making  the  collateral  contracts. 

But  I  hardly  think  it  probable  that  Lord 
Hardwicke  laid  it  down  so  broadly.  It  is  impos- 
sible to  apply  the  principle  more  strongly  as  to 
a  female  than  to  a  male  infant,  and  as  to  male 
infants  no  such  doctrine  has  been  laid  down. 
There  has  been  no  such  decision,  nor  was  that 
proposition  insisted  on  in  Drury  v.  Drury. 

In  Durnford  v.  Lane,  1  Brown,  C.  C.  106, 
the  principle  came  in  question;  that  was  a 
new  case;  the  husband  there  was  an  adult,  the 
wife  was  an  infant.  It  was  an  attempt  to 
bind  the  estate  of  the  wife.  Lord  Thurlow 
had  great  doubts  upon  the  subject.  He  held 
the  husband  bound  by  his  own  covenant,  leav- 
ing the  question  open,  how  far  it  bound  the 
wife. 

But  there  is  a  case  in  which  the  question 
came  directly  before  the  court.  It  is  Clough 
V.  Clough,  in  Mr.  Wooddeson's  Systematic 
View  (volume  3,  p.  453,  note).  It  was  to  carry 
into  effect  a  settlement  made  before  marriage 
of  the  widow,  Patty  Clough,  while  she  was  an 
infant.  The  decree  declared  that  her  estate 
was  not  bound  by  the  marriage  articles,  and 
the  bill  was  dismissed;  that  is  an  express  de- 
cision by  Lord  Thurlow,  that  the  contracts  of 
male  and  female  infants  do  not  bind  their  es- 
tates, and  though  that  is  not  a  case  of  dower, 
it  has  weight  in  this  case,  and  though  it  has 
not  the  sanction  of  the  house  of  lords,  it  is  the 
opinion  of  a  great  judge. 

The  only  question  then  is,  whether  the  case 
of  dower  be  an  exception  to  the  general  rule. 

It  is  said,  the  case  of  Drury  v.  Drury  is  deci- 
sive, and  that  no  judge  ought  to  set  up  his  pri- 
vate opinion  against  it. 

The  fair  question  is,  .what  is  decided  by  that 
case? 

It  may  be  said  that  no  judge  should  contra- 
dict that  case,  but  that  it  will  only  apply  where 
exactly  the  same  case  occurs. 

But  I  shall  always  hold  myself  bound,  when 
I  find  a  case  so  determined,  not  only  by  the 
case  itself,  but  by  all  the  principles  which 
necessarily  apply  to  it.  I  hold  it  a  duty  of  a 
judge,  where  he  finds  a  case  determined  by  the 
house  of  lords,  to  hold  himself  bound  by  all  the 
principles  which  were  necessary  to  its  deter- 
mination. 

What  was  the  question  there?  Lord  North- 
ington,  when  the  case  was  before  him,  was  of 
opinion  that  a  jointure  at  law,  though  accom- 
panied with  every  requisite  of  a  jointure,  would 
not  bind  an  infant.  And,  2dly,  that  a  cove- 
nant to  pay  the  wife  an  annuity  of  £600  a 
year,  not  out  of  particular  lands,  would  not 
bind  her:  from  this  decree  the  cause  went  to 
the  house  of  lords.  The  first  question  on  the 
point  of  law  was  put  to  the  judges;  the  next 
question  was,  whether  an  equitable  jointure 
would  bind  the  infant.  It  was  held  that  a 
jointure  at  law  would   bind,  and  that  a  cove- 


JOINTURE. 


117 


Bant  would  be  held  equivalent  in  this  court, 
though  no  p.articular  lands  were  specified;  be- 
cause, it  was  said,  it  amounted  to  the  same 
thing;  for  if  there  were  no  lauds,  it  would  be 
the  same  thing  as  if  it  was  out  of  particular 
lands,  and  they  were  executed,  then  the  wife 
would  be  entitled  to  her  dower.  So  that  she 
would  have  the  jointure  or  the  dower.  In  that 
case  the  settlement  extended  to  settle  her  real 
estate,  but  there  was  no  question  or  decision 
upon  that.  The  house  ordered  a  part  of  the 
personal  estate  to  be  set  apart,  to  pay  the  an- 
nuity, but  the  widow  would  have  had  a  right  to 
have  had  the  provision  made  in  land,  and  the 
house  of  lords  would  have  ordered  lands  to  be 
set  out,  if  she  had  pressed  it. 

All  the  determination  therefore  in  that  case, 
is,  that  where  the  provision  is  made  as  efljoctu- 
al  as  if  it  was  set  out,  it  will  be  sufficient, 
though  it  is  not  so. 

There  was  no  question  arose  on  that  case, 
on  the  subject  of  election. 

By  the  common  law,  upon  the  marriage,  the 
wife  acquires  a  right  to  dower  in  the  freehold, 
and  a  customary  share  in  the  copyhold  estates 
of  the  husband,  or  a  provision  from  the  hus- 
band under  the  statute. 

It  is  said,  that  guardians  have  a  power  to 
bind  the  right  of  the  infant,  but  I  think  Drury 
V.  Drury  did  not  mean  to  decide  that.  If  the 
provision  had  not  been  certain,  or  if  she  was 
only  to  take  upon  a  remote  contingency. 

Before  I  perform  an  agreement,  I  must  see 
that  it  is  reasonable. 

Then,  what  is  a  jointure?  Lord  Coke  de- 
fines it:  "It  is  a  competent  livelihood  of  free- 
hold, for  the  wife,  to  take  effect  immediately 
after  the  death  of  the  husband,  for  the  life  of 
the  wife."     Vernon's  Case,  4  Coke,  2. 

I  wish  to  know,  what  fair  conclusion  can  be 
drawn  from  Drury  v.  Drury  that  there  is  any 
equity  by  which  a  woman  would  be  obliged  to 
take  an  uncertain  interest  in  bar  of  dower. 
Here,  non  constat  that  one  of  the  estates  will 
ever  be  hers  in  possession;  the  other  has  fallen 
in,  if  she  chooses  to  take  it. 

Suppose  she  had  had  a  jointure  which  turned 


out  to  be  bad,  I  mean,  which  would  not  have 
afforded  her  the  same  advantage  which  she 
would  have  had  from  her  dower,  would  that 
have  bound  her? 

In  Drury  v.  Drury  she  had  as  certain  a  pro- 
vision as  in  her  dower;  therefore,  I  think 
Drury  v.  Drury  decides,  that  where  the  pro- 
vision is  equally  certain  with  the  dower,  it  is 
good. 

Would  she  have  been  bound  by  this  in  her 
husband's  lifetime,  whilst  both  the  tenants  for 
life  were  alive?  If  it  is  good  at  all,  it  must 
be  so  from  the  making  of  the  settlement;  but 
she  could  not  be  bound  then. 

Any  equitable  provision  which  a  woman 
takes,  must  be  as  certain  a  provision  as  her 
dower,  not  an  uncertain  provision  which  she 
may  never  enjoy. 

I  do  not  say  that  if  she  had  been  adult,  she 
might  not  have  bound  herself.  She  might  have 
taken  a  provision  out  of  the  personal  estate,  or 
she  might  even  have  taken  a  chance,  in  satisfac- 
tion for  her  dower,  acting  with  her  eyes  open; 
but  an  infant  is  not  bound  by  a  precarious  in- 
terest. 

Lord  Thurlow,  in  Durnford  v.  Lane,  supra, 
a.nd  in  Williams  v.  Williams  (1  Brown,  C.  0. 
152),  held,  that  a  settlement  to  bind  an  infant 
must  be  reasonable.  This  is  not  such  an  agree- 
ment as  a  court  of  equity  can  call  upon  her  to 
confirm.  The  guardian  is  incautious  where 
he  attempts  to  bind  the  infant  by  a  precarious 
provision. 

Declare  her  not  bound  by  the  settlements, 
and  to  be  at  liberty  to  make  her  election,  to 
take  the  provisions  made  for  her,  or  to  take 
her  dower  and  free  bench,  waiving  the  provi- 
sions; it  being  signified,  that  she  consented  to 
take  the  dower  and  free  bench. 

The  eldest  son,  as  he  suffers  by  her  taking 
her  dower  and  free  bench,  must  have  amends 
made  to  him  by  the  copyhold  estate  settled  by 
Palling. 

Referred  it  to  the  master,  to  take  an  account 
of  the  value  of  the  freehold  and  copyhold  es- 
tates, and  reserved  further  directions  till  after 
the  account  taken. 


118 


ESTATES  IN  KEAL   PROPERTY. 


TAYLOR  et  al.  v.  TAYLOR. 
(33  X.  E.  532,  144  111.  436.) 

Supreme   Court   of   Illinois.     Jan.   19,    1893. 

Appeal  from  circuit  court.  Peoria  county;  T. 
M.  Shaw,  Judge. 

Bill  by  Armenia  J.  Taylor  against  Charles  E. 
Taylor  and  others  for  assignment  of  dowei'. 
Complainant  obtained  a  decree.  Defendants 
appeal.     Affirmed. 

Armenia  J.  Taylor,  -widow  of  Burtis  S.  Tay- 
lor, late  of  Peoria  coimty,  deceased,  filed  her 
bill  in  the  circuit  coiu't  of  that  county  for  the 
assignment  of  dower  in  lands  whereof  he  died 
seised.  The  heirs  at  law  of  Burtis  S.  Taylor 
were  made  defendants,  and  they  answered,  de- 
nying that  the  complainant  was  ever  entitled 
to  dower  in  the  lands  whereof  Burtis  S.  Tay- 
lor died  seised,  because,  before  her  marriage 
with  him,  they  entered  into  an  agreement  as 
follows:  "This  agreement,  made  and  entered 
into  this  ISth  day  of  October,  1883.  between 
Burtis  S.  Taylor,  of  Prihceville,  Peoria  county, 
state  of  Illinois,  party  of  the  first  part,  and 
Armenia  Pardee,  of  the  city  of  New  York, 
state  of  New  York,  party  of  the  second  part, 
witnesseth  that,  whereas,  a  maiTiage  is  about 
to  be  had  and  solemnize.l  between  the  said  par- 
ties, and  the  said  parties  are  desirous  of  mak- 
ing a  settlement  of  their  property,  both  real 
and  personal,  prior  to  said  event,  it  is  agreed 
between  the  parties  that  said  party  of  the  first 
part  is  to  provide  for  the  said  party  of  the 
second  part  all  the  necessaries  of  life,  includ- 
ing medical  care  and  nursing  during  sickness, 
in  all  cases  to  support  and  care  for  her  in  such 
manner  as  his  means  will  permit,  during  his 
life,  and  should  she,  the  party  of  the  second 
part,  survive  the  party  of  the  first  part,  then 
and  in  that  case  the  estate  of  the  said  party 
of  the  first  part  shall  pay  the  party  of  the  sec- 
ond part  the  sum  of  two  thousand  (.^^2,000)  dol- 
lars in  full  payment  and  discharge  of  any  and 
all  claims  she  may  have  to  dower  in  the  real 
estate  of  the  said  party  of  the  first  part,  or 
specific  allowance  as  his  widow,  or  interest  or 
share  she  may  have  in  his  personal  property, 
and  is  to  be  received  by  her  in  full  discharge 
of  any  and  all  such  claims,  dues,  or  demands 
whatever.  It  is  furtlier  agreed  between  the 
parties  that  said  party  of  the  first  part  shall 
hold  any  and  all  of  his  real  estate  during  the 
time  of  their  married  life,  free  and  clear  of 
any  incumbrance  or  dower  or  homestead  of 
the  party  of  the  second  part,  and.  should  it  be- 
come necessary  in  the  transaction  of  business 
for  the  party  of  the  first  part  to  sell  or  dis- 
pose of  any  of  the  real  estate  now  owned  by 
him.  or  which  he  may  hereafter  purchase,  the 
party  of  the  second  part  hereby  agrees  to  sign 
all  deeds  relinquishing  all  right  of  dower  and 
homestead  she  may  have  in  and  to  any  and  all 
such  real  estate,  meaning  and  intending  by  this 
agreement  that  each  shall  have  and  hold  any 
real  estate  that  they  may  have  or  own  at  the 
time  said  marriage  is  solemnized,  or  which  ei- 
ther may  subsequently  purchase  or  obtain  dur- 
ing said  marriage,  free  and  clear  from  the 
claims   or  control   of  each   other,   and   to   be 


owned  and  controlled  in  the  same  manner  as 
though  no  marriage  relations  existed  between 
the  said  parties.     It  is  further  agreed  between 
the  parties  that,  should  said  party  of  the  sec- 
ond part  wish  to  dispose  of  any  real  estate 
which  she  may  own  at  the  time  of  said  mar- 
riage, or  which  she  may  subsequently  obtain 
by  purchase,  devise,  or  otherwise,  the  party  of 
the  first  part  hereby  agrees  to  sign  any  and  all 
deeds  of  conveyance,  thereby  relinquishing  any 
and  all  rights  he  may  have  to  dower  or  home- 
stead in  and  to  said  real  estate.     It  is  further 
agreed  between  the  parties  hereto  that,  should 
any  children  be  born  of  said  marriage,  and  sur- 
vive the  party  of  the  first  part,  that  said  issue 
shall  inherit  all  the  estate  of  the  party  of  the 
first  part,  equally  with  any  issue  the  party 
of  the  first  part  may  have  from  former  mar- 
riage or  marriages,  the  same  as  if  no  contract 
existed   between   the   parents.     It   is   further 
agreed  between  the  parties  that,   should  the 
party  of  the  second  part  survive  the  party  ot 
the  first  part,  the  payment  to  her  of  the  sum 
of  two  thousand  (?2,000)  dollars  shall  be  made 
within  two  (2)  j^ears  from  the  decease  of  the 
party  of  the  first  part,  and  shall  be  made  a  pre- 
ferred claim  against  his  said  estate,  and  shall 
be  paid  out  of  the  proceeds  of  his  estate  next 
to  the  funeral  expenses,  and  is  hereby  made  a 
lien  upon  said  estate  until  paid.     In  witness 
whereof  the  said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above 
written.     Burtis  S.  Taylor.     [Seal.]     Armenia 
Jeane  Pardee.     [Seal.]"     On  final  hearing,  the 
court  decreed  that  this  agreement   was   free 
from  fraud  or  undue  influence,  so  far  as  shown 
by  the  evidence,  except  in  so  far  as  fraud  or 
undue  influence  may  be  inferred  from  the  fact 
that  the  said  contract  did  not  make  a  fair  and 
reasonable    provision    for   his    wife    upon    his 
death,   taking  into  account  the  circumstances 
of  the  parties  and  the  condition  of  the  estate  of 
the  said  husband,  but  the  same  was  inade- 
quate, inequitable,  and  unreasonable,  and  not 
such  a  contract  as  a  com-t  of  equity  will  hold 
to  be  an  equitable  bar  for  the  widow's  dower, 
but  the  same  does  not  bar  her  dower  and  home- 
stead.    The  decree  further  appointed  commis- 
sioners to  assign  dower,  directing  them  to  as- 
sign dower   to   complainant  in   all   the   lands 
whereof  Biu-tis  S.  Taylor  died  seised,  giving 
her,  without  prejudice  to  the  homestead  rights 
of  the  minor  child  of  the  said  Burtis  S.  Taylor, 
the  homestead  or  dwelling  house,  if  she  so  de- 
sired.   The  commissioners  assigned  dower,  and 
reported  their  action  to  the  court,  which  report 
was  approved  by  the  court.     Damages  were 
thereafter  assessed  to  complainant  for  the  de- 
tention of  her  dower   amounting   to   ?880.20. 
The  defendants  bring  the  case  to  this  court  by 
appeal. 

McCuUoch  &  McCulloch,  for  appellants.  W. 
T.  Whiting  and  L.  D.  Puterbaugh,  for  appellee. 

SCHOLFIELD,  J,  (after  stating  the  facts). 
Excluding,  as  we  must,  on  the  objection  of  ap- 
pellants, the  testimony  given  by  appellee  upon 
the  nearing,  there  is  no  evidence  in  the  record 
of  the  circumstances  attending  the  making  of 


JOIXTUKE. 


ll'J 


this  agreement.  No  one  witnessed  its  execu- 
tion, and  no  one  was  informed  that  such  an  in- 
strument had  been  executed  until  long  after  its 
execution.  Some  expressions  of  Taylor  and 
admissions  of  complainant  that  such  an  instru- 
ment had  been  executed  are  proved;  but  Tay- 
lor's expressions  were  as  to  the  effect  of  the 
instrument,  making  no  explanation  of  the  cir- 
cumstances attending  upon  its  execution;  and 
the  admissions  of  complainant  are  accompanied 
by  the  explanation  that  if  she  had  known,  at 
the  time  the  instrument  was  executed,  what 
she  knew  at  the  time  of  making  the  admis- 
sion, she  would  not  have  signed  it.  The  par- 
ties were  married  four  days  after  the  date  of 
this  agreement.— October  22,  1SS3,— and  Taylor 
died  on  the  30th  of  June,  1889.  At  the  time 
of  Taylor's  death,  he  was  seised  of  real  estate 
estimated  to  be  of  the  value  of  $28,000,  of 
most  of  wliich  he  was  seised  at  the  time  the 
agreement  was  executed.  His  pei-sonal  estate, 
at  the  time  of  his  death,  was  estimated  to  be  of 
the  value  of  $13,000.  How  much  of  this  he 
owned  at  the  time  the  agreement  was  executed 
does  not  appear.  The  parties  were  cousins. 
Both  had  been  previously  married;  he  twice, 
and  she  once.  She  had  one  daughter,  then 
maiTied,  and  living  apart  from  her.  He  had 
three  sons  and  three  daughters,  two  or  three 
of  whom  were  minors,  but  not  of  a  very  tender 
age.  The  complainant  was  born  and  raised  in 
the  city  of  New  York,  and  resided  there  until 
she  came  to  Peoria  county,  shortly  previous  to 
her  marriage.  She  had  no  property,  either  real 
or  personal,  and  maintained  herself  by  dress- 
making. Taylor  had  been  a  resident  of  Peoria 
county  for  many  years,  but  we  think  there  is 
competent  evidence  in  the  record  clearly  prov- 
ing that  at  the  time  this  agreement  was  exe- 
cuted he  knew  that  complainant  had  no  prop- 
erty. There  is  not  a  particle  of  evidence  in 
the  record  tending  to  sliow  that  it  was  antici- 
pated by  the  parties,  when  this  agreement  was 
executed,  that  the  complainant  would,  or  could 
in  any  understood  way,  acquire  a  separate 
propertj'  subsequent  to  her  marriage.  In  view 
of  these  facets  that  must  be  taken  into  consid- 
eration in  connection  with  the  making  of  the 
agreement,  the  agreement  is  one-sided,  and  un- 
fair to  the  complainant.  It  is  a  virtual  relin- 
quishment on  her  part  of  dower  in  his  real  es- 
tate, and  of  her  claim  for  a  personal  allowance 
in  his  personal  property,  and  of  what  she  would 
take  in  his  personal  estate  under  the  statute  of 
descents,  for  $2,000,  to  be  paid  to  her  within 
two  years  after  his  decease.  Having  no  sepa- 
rate property,  and  the  acquisition  of  none  in 
contemplation,  the  surrender  of  his  rights  as  to 
such  property  is  meaningless.  Nor  do  we  agree 
with  counsel  that  the  provision  that  children  to 
be  born  of  the  contemplated  marriage  shall  in- 
herit equally  with  his  other  children  amounts 
to  a  contract  in  belialf  of  such  children.  The 
language  is:  "Should  any  children  be  born  of 
said  marriage,  and  survive  the  party  of  the 
first  part,  said  issue  shall  inherit  all  the  es- 
tate of  the  party  of  the  first  part  equally  with 
any  issue  the  party  of  the  first  part  may  have 
from  former  marriage  or  marriages,  the  same 


as  if  no  contract  existed  between  the  parents," 
plainly  intending  not  to  restrict  the  power  of 
disposition  by  sale  or  devise,  but  to  leave  the 
inheritance  of  his  pi-operty,  as  respects  his  chil- 
dren by  her,  unaffected  by  the  agreement;  and 
so  they  were  as  well  off  without  as  with  this 
stipulation.  The  sum  to  be  paid  is  not  above 
one  half,  if,  indeed,  it  is  that,  of  what  com- 
plainant would  have  received  as  widow  from 
the  personal  estate  alone  in  the  absence  of  any 
agreement;  and  it  is  to  be  received  at  a  date 
no  earlier  than  she  would  have  received  it  in 
the  absence  of  an  agreement.  It  is  unneces- 
sary to  say  that  complainant  is  not  competent 
to  enter  into  .such  an  agreement.  It  may  be 
conceded  that  she  had  the  legal  capacity  to 
nmke  such  a  contract,  and  that  marriage  was 
a  sufficient  consideration  to  support  it;  but.  in 
the  absence  of  clear  and  satisfactoi-y  proof,  it 
is  not  to  be  prestimed  that  she  would,  with  full 
knowledge  of  all  the  circumstances,  have  en- 
tered into  such  a  contract.  Parties  to  an  ante- 
nuptial contract  occupy  a  confidential  relation 
towards  each  other.  Kline's  Estate,  G4  Pa.  St. 
124;  Pierce  v.  Pierce.  71  N.  Y.  154;  Rockaf el- 
low  V.  Newcomb,  57  111.  186.  While  they  may 
lawfully  contract  with  each  other  where  there 
is  full  knowledge  of  all  that  matei'ially  affects 
the  contract,  yet,  where  the  provision  secured 
for  the  intended  wife  is  disproportionate  to  the 
means  of  the  intended  husband,  it  raises  the 
presumption  of  designed  concealment,  and 
throws  the  burden  upon  those  claiming  in  his 
right  to  prove  that  there  was  full  knowledge 
on  her  part  of  all  that  materially  affected  the 
contract.  Cases  cited  supra;  Bierer's  Appeal, 
92  Pa.  St.  267;  Tierman  v.  Binns,  Id.  248: 
Spurlock  V.  Brown  (Tenn.  Sup.)  18  S.  W.  808 
(not  yet  officially  reported).  The  burden  here 
was,  therefore,  upon  appellants  to  prove  by 
satisfactory  evidence  that  appellee  had  knowl- 
edge of  the  character  and  extent  of  her  intend- 
ed husband's  property,  and  of  the  provisions 
and  effect  of  this  instrument,  or,  at  all  events, 
that  the  circumstances  were  such  that  she  rea- 
sonably ought  to  have  had  such  knowledge  at 
the  time  this  instrument  was  executed.  In  our 
opinion,  they  failed  to  make  such  proof.  It  is 
further  contended  that  there  is  error  in  the  de- 
cree in  awarding  the  homestead  to  complainant 
as  part  of  her  dower,  without  recognizing  tlie 
existing  rights  of  William  G.  Taylor  tlierein. 
In  our  opinion,  this  is  a  misapprehension  of  the 
effect  of  the  decree.  It  expressly  directs  that 
the  commissioners  shall  give  her,  "without  prej- 
udice to  the  homestead  rights  of  the  minor 
child  of  the  said  Burtis  S.  Taylor,"  who  is 
William  G.  Taylor,  "the  homestead  or  dwelling 
house  of  her  husband,"  etc.  The  clause  di- 
recting her  to  be  let  into  possession  is  subor- 
dinate to  this.  She  is  to  be  let  into  possession 
of  the  premises  "so  assigned  to  her  as  dower;" 
that  is,  in  those  where  William  G.  Taylor,  the 
minor,  has  a  homestead  right,  without  preju- 
dice to  that  right,  as  well  as  absolutely  unto 
those  where  there  are  no  confficting  rights. 
The  decree  is  affirmed. 

CRAIG,  J.,  dissents. 


120 


ESTATES  IN  HEAL   PROPERTY. 


TAFT  V.  TAFT  et  al.  (two  cases). 

(40  N.  E.  860,  163  Mass.  467.) 

Supreme  Judicial  Court  of  Massachusetts. 
Worcester.      May  22,  189.5. 

Case  reserved  from  supreme  judicial  court, 
Worcester  county;    Lathrop,  Judge. 

Actions  by  Emeline  N.  Taft  against  Luke 
Herbert  Taft  and  others,  and  by  Luke  Herbert 
Taft  and  others,  executors,  against  Emeline 
N.  Taft.  The  first  of  these  cases  was  a  writ 
of  entry  to  recover  one  undivided  sixth  of  a 
tract  of  land  by  virtue  of  an  antenuptial  agree- 
ment entered  into  between  the  plaintiff  Em- 
eline N.  Taft,  and  her  husband,  JMoses  Taft, 
under  which  the  plaintiff  agreed  to  accept  as 
her  dower  interest  in  the  estate  of  her  hus- 
band only  one-sixth  of  his  real  estate.  The 
second  suit  was  a  bill  in  equity  for  instruc- 
tions under  the  will  to  settle  the  rights  of 
the  plaintiff  in  the  first  suit  under  the  will 
as  it  related  to  the  contract.  Emeline  N. 
Taft  claimed  both  under  the  antenuptial  agree- 
ment and  under  the  will.     Case  reserved. 

Hopkins  &  Bacon,  for  Emeline  Taft.  Hosea 
N.  Knowlton,  for  residuary  legatees. 

ALLEN,  J.  The  principal  question  present- 
ed by  these  cases  is  VN'hether  the  provisions  in 
the  testator's  will  in  favor  of  his  wife  were 
intended  to  be  a  substitute  for  her  rights 
under  the  antenuptial  agreement,  so  that  by 
accepting  the  provisions  of  the  will  she  is  pre- 
cluded from  claiming  also  under  the  agreement. 
By  the  antenuptial  agreement,  which  was 
dated  December  12,  1857,  she  was  to  continue 
to  have  and  to  hold  all  of  her  own  estate,  real 
and  personal,  after  the  marriage,  and  alsc 
such  other  estate  as  she  might  subsequently 
acquire  in  her  own  right;  and,  in  case  he 
should  survive  her,  all  of  the  above  was  to 
descend  to  her  child  or  children.  In  case  she 
should  survive  him,  she  was  to  be  endowed  in 
one-half  part  only  of  his  real  estate;  that  is, 
her  dower  was  to  be  one-sixth  part  only  instead 
of  one-third  part  of  his  real  estate;  and  she 
was  to  receive  one-sixth  part  only  instead  of 
one-third  part  as  her  distributive  share  in  his 
personal  estate.  She  was  also  to  release  her 
rights  of  dower  and  homestead  in  case  he 
should  wish  to  convey  real  estate  during  cov- 
ertm-e;  and,  in  case  his  heirs  or  other  persons 
interested  in  his  real  estate  after  his  death 
should  wish  to  do  so,  she  was  to  release  her 
rights  of  dower  and  homestead  on  receiving  a 
just  equivalent  therefor.  This  antenuptial 
agreement  was  not  to  apply  to  any  house  in 
which  they  might  live  at  the  time  of  his  de- 
cease. There  is  nothing  to  show  what  amount 
of  property  she  owned  then  or  at  any  time 
thereafter.  He  died  April  2, 1893.  His  prop- 
erty had  largely  increased  dui'ing  their  life 
as  husband  and  wife,  and  after  his  death  it 
was  appraised  as  follows:  Personal  property, 
$309,250;  homestead,  $9,000;  other  real  es- 
tate, $0,800;  being  in  all.  $325,0.50.  His  debts 
were  from  $3,000  to  $5,000.  The  residuary 
legatees  contend  that  she  has  no  such  present 


interest   in   the   real   estate,  other   than    the 
homestead,  as  to  enable   her   to   maintain  a 
real    action,    because    the    contract   does   not 
amount  to  a  jointure.     The  contract,  however, 
does  not  purport  to  bar  her  right  of  dower 
wholly,  but  cuts  it  down  one-half.     She  sur- 
rendered one-half  her  right  of  dower  in  all 
real  estate  he  might  die  seised  of,  except  the 
homestead.     The  agreement  does  not  create 
an  estate  in  her.    The  law  creates  the  estate, 
which,  by  the  agreement  she  gave  up  to  the 
extent    of    one-half.     They    further    contend 
that  under  the  agreement  she  takes  no  in- 
terest   in  the  personal   estate,   because    the 
words  used   are  that  she  shall  receive  one- 
sixth  part  only,  instead  of  one-third  part,  as 
her  "distributive  share"   of  his  personal  es- 
tate;   that  the  words  "distributive  share,"  in 
their  legal  meaning,  relate  only  to  an  intes- 
tate estate,  or  to  an  estate  made  intestate  as  to 
a  widow  by  her  waiving  the  will;  that  this  is 
not  an  intestate  estate  in  either  sense,  and 
therefore  that  the  contract  gives  her  no  right 
to  any  portion  of  his  personal  estate.    Such 
we  understand  to  be  the  contention  in  behalf 
of  the  residuary  legatees.     But  this   is  too 
strict    and    technical    a   construction    of    the 
words  used.     The  meaning  is  that  she  shall 
receive  one-sixth  part  of  his  personal  estate. 
In  view  of  the  contract,  then,  taken  by  itself 
alone,  she  would  now  be  entitled  to  dower  in 
the  homestead,  to  a  life  interest  in  one-sixth 
part  of  the  rest  of  his  real  estate,  and  to  one- 
sixth  part  of  his  personal  estate.     Her  share 
of  the  personal  estate  would  amount  to  $51,- 
541.67.     If  there  were  no  antenuptial  agree- 
ment, and  no  will,  she,  by  law,  would  be  en- 
titled to  dower  in  all  of  the  real  estate,  and 
to  one-third  part  of  the  personal  estate,  which 
one-third  would  amount  to  $103,083.33.     Mr. 
Taft's  wiU  is  dated  February  23,  1886.     The 
value  of  his  property  at  that  date  is  not  given. 
The  will  makes  no  mention  of  the  antenuptial 
agreement,  but  gives  to  "my  beloved  wife" 
the  use  of  the  homestead  for  life;   the  furni- 
ture, etc.,  of  the  value  of  $1,000;   the  sum  of 
$5,000;    and  an  annuity  of  $1,200  dm-ing  her 
life.     To  raise  this  annuity  would  require  the 
holding  of  $30,000,  reckoning  the  income  at  4 
per  cent.,  which  counsel  on  both  sides  assume 
to  be  a  reasonable  rate.     It  is  apparent  that, 
if  the  provisions  for  her  in  the  will  are  held 
to  supersede  the  antenuptial  agreement,  she 
will  get  materially  less  than  by  the  agreement, 
estimating  the  property  at  its  appraised  value 
after  the  testator's  death.     There  is  no  inti- 
mation in  the  will  that  its  provisions  were  in- 
tended to  supersede  the  agreement.    He  could 
not  cut  down  her  rights  under  the  agreement 
without  her  consent.     We  find  nothing  in  the 
circumstances  to  show  an  intention  of  ask- 
ing her  consent  to  any  reduction'  or  change 
of  her  rights  under  the  agreement.     It  seems 
probable,  rather,  that  with  the  increase  of  his 
property  he  wished  to  do  more  for  her  comfort 
and  enjoyment  during  life.     To  this  end  he 
gave  her  outright  $5,000  in  money,  and  furni- 
ture of  the  value  of  $1,000;   the  use  for  life  of 
the  homestead,  instead  of  her  dower  therein; 


JOINTURE. 


121 


and  what  practically  amounts  to  the  income 
of  $30,000  during  her  life.  His  own  descend- 
ants will  ultimately  get  the  whole  of  this 
property,  except  the  $.",000  in  money  and  the 
furniture;  and  even  with  tlie  addition  of  these 
provisions  in  her  favor  to  her  rights  under 
the  agreement  she  will  get  less  from  his  es- 
tate than  she  would  have  got  if  there  had  been 


no  agreemeLt  and  no  will.  The  result  is  that 
she  has  the  right  to  take  what  is  given  to  her 
by  her  husband's  will  in  addition  to  what 
she  is  entitled  to  receive  under  the  antenuptial 
agreement.  She  is  entitled  to  judgment  in 
the  real  action,  and  in  the  petition  of  the  ex- 
ecutors instructions  will  be  giver.'  in  accord- 
ance with  tbis  opinion.    Ordered  accordingly. 


122 


ESTATES  IN  REAL  PROPERTY. 


THOMPSON  et  al.  v.  TUCKER-OSBORN. 
(69  N.  W.  730.) 

Supreme  Court  of  Michigan.     Jan,  5,  1897. 

Appeal  from  circuit  court,  Lenawee  county, 
in  chancery;    Victor  H.  Lane,  Judge. 

Bill  by  Gamaliel  I.  Thompson,  executor  of 
the  estate  of  John  M.  Osborn.  deceased,  and 
others,  against  Sarah  A.  Tucker-Osborn,  for 
specific  performance  of  an  antenuptial  con- 
tract between  defendant  and  deceased.  From 
a  decree  dismissing  the  bill,  complainants  ap- 
peal.    Reversed. 

Fellows  &  Chandler  and  Watts,  Bean  & 
Smith,  for  appellants.  F.  A.  Lyon  and  L.  R. 
Pierscu,  for  appellee. 

LONG,  C.  J.  On  October  3,  1S91,  John  M. 
Osborn  married  the  defendant.  Mr.  Osborn 
was  at  this  time  upwards  of  the  age  of  70 
years.  He  had  been  married  twice  before; 
had  retired  from  the  banking  business  some 
years  before;  was  suffering  from  a  lingering 
disease.  He  had,  some  time  before  this,  sub- 
mitted to  an  operation,  by  which  a  part  of  one 
of  his  feet  had  been  removed.  It  was  well 
known  by  his  friends  and  those  associated 
with  him  that  it  was  a  disease  which  must 
prove  fatal  in  the  near  future,  and  was  known 
as  "senile  gangrene."  The  defendant  had 
been  in  Mr.  Osborn's  employ  as  a  serv'ant 
woman  and  housekeeper  for  something  like 
six  years  before  the  marriage.  Slie  had  nev- 
er been  married,  and,  prior  to  the  time  she 
commenced  working  for  Mr,  Osborn,  had 
supported  herself  by  going  out  to  sei-vice.  On 
the  16th  day  of  September,  before  the  mar- 
riage, Mr.  Osborn,  evidentlj^  in  contemplation 
of  the  marriage,  drew  in  duplicate  an  ante- 
nuptial conti'act,  as  follows:  "This  antenup- 
tial contract  or  agi'eement,  made  this  16th  day 
of  September,  A.  D.  1891,  between  John  M. 
Osborn,  party  of  the  first  part,  and  Sarah  A. 
Tucker,  party  of  the  second  part,  both  of  the 
township  of  Pittsford,  county  of  Hillsdale, 
and  state  of  Michigan,  witnesseth:  That  the 
party  of  the  first  part,  for  the  reason  of  a  mar- 
riage to  be  consummated  between  and  by  the 
first  and  second  parties  hereinbefore  named, 
does  hereby  agree  and  promise  that  said  sec- 
ond party  shall  be  supported  from  the  estate 
of  which  I  may  die  possessed  for  the  term  of 
her  natural  life,  said  support  to  be  by  pro- 
viding a  home  and  such  an  amount  monthly 
or  quarterly  or  yearly  as  may  be  necessary 
to  enable  her  to  live  in  comfort,  and  equal  to 
such  as  she  has  heretofore  enjoyed,  and,  in 
case  of  sickness,  such  added  amount  as  may  be 
necessary  for  care,  medical  attendance,  and 
other  necessary  expenditures.  The  party  of 
the  second  part,  in  consideration  of  the  above- 
named  provisions  for  support,  hereby  accepts 
the  same  as  marriage  settlement,  and  hereby 
waives  all  rights  in  a  will  now  made  by  first 
party,  and  all  rights  of  dower  of  real  estate, 
and  all  rights  in  the  personal  estate  of  which 
said  first  party  may  die  possessed.  It  is  hereby 
further  agreed  between  said  parties  that  the 
delivery  of  this  contract,  duly  signed,  shall  be 


a  bar  from  any  claim  from  either  party  as  to 
services,  money,  or  support,  or  any  other  claim 
whatever  existing  at  the  time  this  contract 
shall  be  executed.  It  is  further  agreed  that 
funeral  expenses  and  rights  of  burial  are  con- 
sidered as  an  inherent  part  of  this  contract. 
It  is  further  agreed  that  this  contract  holds 
good  only  so  long  as  second  party  shall  re- 
main the  widow  of  said  first  party.  The 
above  contract  is  in  duplicate,  one  retained  by 
each  party.  In  witness  of  the  above,  the  par- 
ties thereto  hereby  subscribe  their  names  and 
affix  their  seals,  this  13th  day  of  September, 
A.  D.  1891.  John  M.  Osborn.  [L.  S.]  Sarah 
A.  Tucker.  [L.  S.]  Witnesses:  S.  Van  Etta. 
H.  S.  Van  Etta."  On  the  30th  day  of  Sep- 
tember, three  days  before  the  marriage,  this 
contract  was  signed  in  duplicate  by  the  par- 
ties, in  the  presence  of  two  witnesses.  One 
of  these  contracts  was  placed  in  an  envelope 
marked  "John  M.  Osborn,  Personal  Matter," 
in  Mr.  Osborn's  handwriting.  The  other  was 
placed  in  an  envelope  marked  "Sarah  A.  Tuck- 
er." Both  envelopes  were  sealed,  and  placed 
in  an  envelope  whch  was  marked  "John  M, 
Osborn's  Will,"  and  were  left  in  a  trunk  with 
Mr.  Thompson,  who  was  formerly  pai'tner  of 
Mr.  Osborn,  at  Mr.  Thompson's  bjink.  Be- 
fore Mr.  Osborn's  death,  he  executed  a  will, 
clause  2  of  which,  it  is  claimed,  was  made 
for  the  pxu-pose  of  carrying  out  the  terms  and 
provisions  of  said  antenuptial  contract,  and  is 
as  follows:  "Second.  I  give,  devise,  and  be- 
queath to  my  good  wife,  Sarah  A.  Osborn, 
the  occupancy,  use,  income,  and  profits  of  all 
the  residue  of  my  said  homestead  farm  which 
is  left  after  deducting  such  thereof  as  I  have 
given  and  devised  to  my  nephew,  said  Gama- 
liel O.  Baker,  in  the  first  clause  of  this,  my 
will,  for  and  during  the  term  of  her  natural 
life,  with  the  right  to  have,  during  her  occu- 
pancy thereof,  her  necessary  firewood  from 
that  part  of  my  homestead  farm  devised  in 
the  fii-st  clause  of  this,  my  will,  to  Gamaliel 
O.  Baker,  as  an  estate  for  life,  but  not  to 
commit  any  waste  thereof.  Also,  I  give,  de- 
vise, and  bequeath  to  my  said  wife,  Sarah  A. 
Osborn,  to  be  hers  absolutely,  all  my  house- 
hold roods  and  my  mare,  named  Nelly,  and 
my  sorrel  colored  horse,  named  Dan,  and  my 
two  phaetons,  and  the  two  single  harnesses, 
blanket,  and  whip  used  with  them;  also  the 
jack  used  to  oil  the  phaeton  with.  Also,  I 
place  in  trust  in  the  hands  of  my  executor 
the  sum  of  five  thousand  dollars,  to  be  used 
according  to  the  good  judgment  and  discre- 
tion of  my  executor,  so  much  thereof  as  may 
from  time  to  time  be  necessary,  in  with  my 
other  devises  and  bequests  to  her,  for  her 
comfortable  support  in  health  and  sickness 
during  her  natural  lifetime,  and  for  her  fu- 
neral expenses;  but,  if  my  said  wife  shall 
again  marry,  then  from  and  after  the  date  of 
her  marriage  said  support,  and  also  her  rights 
of  occupancy,  use,  and  enjoyment  of  the  land 
and  premises  hereinbefore  devised  to  her, 
shall  cease  and  be  ended,  and  the  same  shall 
then  revert;  and  it  is  my  intention  and  my 
will  that  the  provisions  that  I  have  made  for 


JOINTURE. 


123 


my  said  wife  in  this,  my  last  will  and  testa- 
ment, shall  be  received  and  accepted  by  her 
in  full  satisfaction  and  bar  of  dower  in  all 
my  real  estate."  Mr.  Osborn  died  on  the 
9th  day  of  December,  1803,  and  his  will  was 
admitted  in  rej?iilar  form  to  probate.  Previ- 
ous to  the  making  of  this  antenuptial  con- 
tract, and  on  October  22,  1889,  Mr.  Osborn 
gave  the  defendant  a  paper  which,  together 
with  the  indorsement  thereon,  is  as  follows: 
"$500.  One  year  from  date,  for  value  receiv- 
ed, I  promise  to  pay  Sarah  A.  Tucker  five 
hundred  dollars,  the  same  to  be  paid  to  the 
above  only,  not  transferable  by  assignment 
or  descent  of  property.  John  M.  Osborn. 
Hudson,  Mich.,  October  22nd,  1889."  In- 
dorsed thereon:  "I  hereby  extend  the  within 
note  on  the  terms  as  stated  therein,  payable 
at  any  time,  at  the  option  of  J.  M.  Osborn  or 
by  his  estate  when  settled.  [Signed]  Sarah 
A.  Tucker."  The  indoreement  was  made  be- 
fore the  antenuptial  contract,  and  before  the 
marriage. 

These  are  the  facts  as  claimed  by  com- 
plainants, and  as  found  by  the  court  to  be 
true  upon  the  hearing  of  said  cause  in  open 
court.  After  the  probate  of  the  will  and 
the  appointment  of  commissioners  on  said 
estate,  the  defendant,  repudiating  the  con- 
tract, and  denying  the  validity  thereof,  and 
refusing  to  accept  the  provisions  made  for 
her  in  said  will,  presented  said  note  to  the 
commissioners,  as  a  claim  against  the  es- 
tate of  the  deceased,  and  had  the  same  al- 
lowed, from  which  allowance  John  M.  Baker, 
one  of  the  complainants,  appealed  to  the 
circuit  court  for  the  county  of  Hillsdale, 
where  said  appeal  is  still  pending.  Defend- 
ant also  brought  suit  in  the  circuit  court  for 
the  county  of  Hillsdale,  in  ejectment,  to  re- 
cover what  she  claimed  to  be  her  dower  estate 
in  the  land  owned  by  the  deceased  in  Hills- 
dale county,  and  also  brought  suit  in  the  cir- 
cuit court  for  the  county  of  Lenawee,  in 
ejectment,  to  recover  what  she  claimed  to  be 
her  dower  estate  in  the  land  owned  by  the 
deceased  in  that  county  at  the  time  of  his 
death.  The  executor  named  in  said  will  and 
the  other  complainants  (legatees  named  in 
said  will)  filed  this  bill,  asking  for  a  specific 
performance  of  said  antenuptial  contract, 
and  to  restrain  the  defendant  from  further 
prosecuting  her  claim  before  the  commis- 
sioners and  the  ejectment  suits.  The  testi- 
mony was  taken  in  open  court,  and  on  March 
14,  1896,  the  court  entered  a  decree  dismiss- 
ing the  bill,  but  finding  the  following  facts: 
"First.  That  John  M.  Osborn  died  at  the 
time  alleged  in  said  bill  of  complaint,  the 
owner  of  the  real  estate  described  and  set 
forth  in  said  bill  of  complaint.  Second.  That 
on  the  30th  day  of  September,  1891,  the  said 
John  M.  Osborn  and  said  Sarah  A.  Tucker 
(now  Sarah  A.  Tucker-Osborn,  the  defend- 
ant in  this  suit)  made  and  executed  and  de- 
livered the  antenuptial  contract  set  forth 
and  described  in  said  bill  of  complaint. 
Third.  That  said  antenuptial  contract  was 
made  by  the  said  parties  with  a  full  under- 


standing of  its  objects,  effects,  and  pur- 
poses. Fourth.  That  the  said  Sarah  A. 
Tucker  was  then  possessed  of  such  informa- 
tion by  which  she  knew  the  extent  and 
value  of  the  property  of  said  John  M.  Os- 
born. Fifth.  That  the  said  John  M.  Osborn 
and  said  Sarah  A.  Tucker  afterwards  inter- 
married. Sixth.  That  the  said  John  M.  Os- 
born, in  his  lifetime,  made  and  executed  the 
will  set  forth  and  described  in  said  bill  of 
complaint.  Seventh.  That  the  provisions 
therein  named  for  the  said  Sarah  A.  Tucker- 
Osborn  were  made  by  the  said  John  M.  Os- 
born for  the  purpose  of  carrying  out  said 
antenuptial  contract.  Eighth.  Tliat  said  pro- 
visions in  said  will  do  not  fully  carry  out 
the  terms  of  said  antenuptial  contract, 
Ninth.  That  said  antenuptial  contract  is  not 
sufficiently  specific  in  its  terms  for  th^  court 
to  decree  a  specific  performance  thereof. 
Tenth.  That  said  antenuptial  conti-act  can- 
not operate  to  bar  dower."  From  this  de- 
cree, complainants  appeal. 

1.  Defendant  contends  that  the  court  was 
in  error  in  the  findings  of  fact,  and  that,  in 
any  event,  the  bill  was  properly  dismissed. 
We  cannot  agree  with  this  contention.  We 
are  satisfied  from  the  evidence  that  the  ante- 
nuptial contract  was  made  between  the  par- 
ties, and  delivered,  as  claimed  by  the  com- 
plainants, and  that  it  was  made  with  a  full 
understanding  between  them  of  its  object 
and  purposes,  and  that  the  defendant  well 
knew  the  extent  and  value  of  the  property 
of  John  M.  Osborn;  neither  have  we  any 
doubt  but  that  John  M.  Osborn  intended  to 
fully  carry  out  the  provisions  of  the  contract 
by  clause  2  of  his  will  above  set  out.  It 
would  be  of  no  interest  to  the  parties  or  the 
profession  to  set  out  the  testimony  in  full 
upon  which  we  reach  these  conclusions. 
They  are  the  conclusions  of  the  court  be- 
low, who  heard  the  testimony,  and  we  can- 
not well  see  how  any  other  result  could  be 
reached,  under  the  evidence  in  the  case. 

2.  It  is  further  contended  that  in  any 
event  the  court  was  correct  in  finding  that 
the  antenuptial  contract  could  not  be  en- 
forced, for  the  reasons  (a)  that  the  court  had 
no  jurisdiction;  (b)  that  the  contract  is  void 
on  its  face;  (c)  that  it  could  not  bar  dower; 
(d)  that  it  is  not  sufficiently  specific  to  be  en- 
forced; (e)  that  the  will  does  not  carry  out 
the  terms  of  the  contract.  A  marriage  be- 
tween parties  who  have  previously  made  a 
contract  with  each  other,  to  be  performed  pres- 
ently or  during  the  marriage,  releases  or  ex- 
tinguishes such  contract.  Such  contracts, 
however,  when  made  in  contemplation  of 
marriage,  and  respecting  the  property  of 
each  of  the  parties,  though  released  or  ex- 
tinguislied  at  law,  are  held  good  in  equity, 
and  will  be  enforced  by  a  court  of  chancery 
against  the  heirs  of  the  party  in  default. 
Miller  v.  Goodwin,  8  Gray,  542.  As  stated 
by  Mr.  Schouler  in  his  work  on  Domestic 
Relations  (section  173):  "In  this  country  the 
validity  of  marriage  settlements  is  gouerally 

;   recognized;    and  it  is  well  understood  that 


124 


ESTATES  IN  REAL  PROPERTY. 


almost  any  bona  nae  ana  reasonable  agree- 
ment made  before  marriage,  securing  the 
wife  either  in  the  enjoyment  of  her  own 
personal  property,  or  a  portion  of  that  of 
her  husband,  either  in  coverture  or  after 
death,  will  be  enforced  in  a  court  of  chan- 
cery." In  Stilley  v.  Folger,  14  Ohio,  610, 
the  court  said:  "All  supposed  actual  fraud 
may  be  laid  out  of  view.  Why  should  not 
this  agreement  be  enforced?  Antenuptial 
contracts  have  long  been  regarded  as  within 
the  policy  of  the  law,  both  in  Westminster 
and  the  United  States.  They  are  in  favor 
of  marriage,  and  tend  to  promote  domestic 
happiness,  by  removing  one  of  the  frequent 
causes  of  family  dispute,— contention  about 
property,  and  especially  allowances  to  the 
wife.  Indeed,  we  thinlj  it  may  be  considered 
as  well  settled  at  this  day  that  almost  any 
bona  fide  and  reasonable  agreement  made 
before  marriage  to  secure  the  wife  the  enjoy- 
ment either  of  her  own  separate  property  or  a 
portion  of  that  of  her-  husband,  whether  dur- 
ing the  coverture  or  after  death,  will  be  car- 
ried into  execution  in  a  court  of  chancery." 
In  Paine  v.  Hollister,  139  Mass.  144,  29  N. 
E.  541,  a  bill  was  filed  by  the  executor  to 
enjoin  the  widow  prosecuting  a  petition  in 
the  probate  court  for  an  allowance  out  ol 
the  husband's  estate,  setting  up  the  fact 
that  the  defendant  had  entered  into  an  ante- 
nuptial contract  whereby  she  had  agreed  to 
accept  a  certain  provision  in  lieu  of  dower, 
or  any  allowance  or  distributive  share  in  tlie 
estate  of  her  husband.  There  the  court  said: 
"There  is  no  doubt  that  the  contract  is  law- 
ful in  its  general  features;  that  it  was  not 
extinguished  by  the  marriage  of  the  par- 
ties; and  that  a  resort  to  equity  is  proper 
to  enforce  it."  The  same  principle  is  recog- 
nized in  equity  in  Tarbell  v.  Tarbell,  10  Al- 
len, 278;  Jenldns  v.  Holt,  109  Mass.  261; 
Blacldnton  v.  Blackinton,  110  Mass.  461;  Sul- 
lings  V.  Richmond,  5  Allen,  187;  Collins  v. 
Collins  (Iowa)  33  N.  W.  442;  McNutt  v.  Mc- 
Nutt  (Ind.  Sup.)  19  N.  E.  115.  In  a  note  to 
the  last  case  cited,  it  is  said:  "Executory 
agreements  made  between  a  man  and  wom- 
an, who  afterwards  marry,  and  which  then  be- 
comes void  at  the  common  law,  in  the  applica- 
tion of  the  conscientious  principles  of  equity, 
will  be  specifically  enforced  against  either 
husband  or  wife  at  the  suit  of  the  other." 
Tliis  doctrine  has  been  fully  recognized  in 
this  court  in  Phillips  v.  Phillips,  83  Mich. 
259,  47  N.  W.  110. 

It  is  therefore  well  settled  that  a  court  of 
chancery  has  jurisdiction  to  determine  the 
questions  here  presented,  and  that  the  par- 
ties are  in  the  proper  forum.  But  it  is  claim- 
ed that  such  a  contract  would  not  bar  dower 
in  the  lands  of  the  husband.  It  is  contended 
tliat  the  contract  ipso  facto  operated  as  a  bar 
to  her  dower,  like  a  jointure  or  pecuniary  pro- 
vision settled  upon  her  in  accordance  with 
the  terms  of  sections  5746-5749,  2  How.  Ann. 
St.;  but  that  it  was  an  executory  agreement 
between  the  parties,  and,  wlien  performed  by 
Mr.   Osborn  or  those  representing   him,   the 


court  will  compel  the  defendant  to  specifical- 
ly perform  her  part  of  the  contract,  and  re- 
lease her  dower  right;  and  that  the  making 
of  the  will  was  performance  on  the  part  of 
Mr.  Osborn.  If  the  contract  is  so  specific  that 
its  performance  may  be  decreed,  and  the  will 
operates  to  carry  out  the  agreement  on  the 
part  of  Mr.  Osborn,  we  have  no  doubt  of  the 
correctness  of  this  contention.  Dakin  v.  Da- 
kin,  97  Mich.  284,  56  N.  W.  562.  That  the 
defendant  entered  into  the  contract  we  have 
no  doubt,  fully  understanding  its  terms  and 
the  financial  condition  of  Mr.  Osborn.  She 
had  been  an  inmate  of  his  house  for  several 
years.  There  seems  to  have  been  made  am- 
ple provision  for  her  support  and  maintenance 
by  the  contract,  and  such  as  was  satisfactory 
to  her.  But  it  is  said  that  it  is  not  suflBcient- 
ly  specific,  and  for  that  reason  it  cannot  be 
enforced.  The  contract  provides  for  her  sup- 
port from  the  estate  by  providing  a  home 
and  such  amount  monthly  or  quarter-yearly 
as  may  enable  her  to  live  in  comfort,  and 
equal  to  such  as  she  had  heretofore  enjoyed, 
and,  in  case  of  sickness,  such  added  amount 
as  may  be  necessary  for  care,  medical  attend- 
ance, and  other  necessary  expenditures,  and 
at  her  death  funeral  expenses  and  rites  of 
burial.  These  amounts  are  easily  ascertain- 
able. Her  former  mode  of  life  was  to  be 
taken  into  consideration  in  fixing  what  the 
home  should  be,  as  well  as  the  allowance  to 
be  made.  She  was  a  woman  without  means 
at  the  time  this  contract  was  made,  and  in 
the  employ  of  the  deceased  as  housekeeper. 
Before  that  time  she  was  there  in  the  capaci- 
ty of  a  house  servant.  In  Collins  v.  Collins 
(Iowa)  33  N.  W.  442,  the  contract  provided 
that  "E.  A.  Collins  [the  husband]  does  by 
these  presents  agree  to,  and  does  hereby,  set- 
tle upon  Maria,  out  of  his  estate,  a  sufficient 
amount  to  keep  and  maintain  her  during  her 
life,  or  as  long  as  she  remains  his  widow; 
that  such  amount  so  to  be  furnished  shall  be 
sufficient  to  maintain  Maria  in  such  circum- 
stances and  in  such  manner  as  the  estate  of 
said  Collins,  Sr.,  will  justify,  and  as  would  be 
reasonable  to  be  furnished  by  a  party  or  an 
estate  in  like  financial  circumstances."  The 
court  decreed  specific  performance,  and  fixed 
the  amount  that  would  be  reasonable  under 
all  the  circumstances.  In  Jacobus'  Ex'r  v. 
Jacobus,  20  N.  J.  Eq.  49,  it  was  held  that  it 
was  within  the  power  of  a  court  of  equity  to 
determine  what  a  good  and  sufficient  support 
was,  and  to  direct  its  payment.  In  Preston 
Nat.  Bank  of  Detroit  v.  Greorge  T.  Smith 
Middlings  Purifier  Co.,  84  Mich.  384,  47  N. 
W.  502,  a  contract  less  specific  than  the  pres- 
ent one  was  enforced  by  this  court. 

Did  the  will  fully  carry  out  the  terms  of 
the  contract?  By  the  will,  the  defendant 
was  given  what  was  left  of  the  home  farm, 
after  taking  ofC  the  part  left  by  the  will  to  a 
nephew,  with  the  right  to  firewood  from  the 
part  devised  to  the  nephew.  She  was  also 
given  absolutely  the  household  furniture,  two 
horses,  two  phaetons,  etc.  He  then  placed 
the  sum  of  $5,000  in  trust  in  the  hands  of  his 


JOINTURE. 


125 


executor  for  her  use,  and  to  be  paid  from 
time  to  time,  as  her  necessities  demanded. 
It  is  true  that  the  payments,  by  the  terms 
of  the  will,  were  not  in  exact  accord  with  the 
terms  specified  in  the  contract,— that  is, 
monthly  or  quarterly,— but  from  time  to  time; 
and  there  is  notliing  in  the  case  showing  that 
it  will  not  be  paid  in  accordance  with  the 
contract     It  cannot  be  said  that  the  will  does 


not  carry  out  the  terms  of  the  contract,  and 
meet  the  requirements  of  it  The  court  be- 
low was  in  error  in  holding  that  the  contract 
was  not  specific  enough  to  be  enforced,  and 
that  the  will  did  not  carry  out  its  terms.  The 
decree  below  must  be  reversed,  and  a  decree 
entered  here,  granting  the  prayer  of  the  bill. 
No  costs  of  this  court  will  be  allowed  to  either 
party.     The  other  justices  concurred. 


126 


ESTATES   IN   REAL  PROPERTY. 


KEELER  r.  EASTMAN. 

(11  Vt.  293.) 

Supreme   Court   of   Vermont.     Rutland.     Jan., 
1839. 

The  orator's  bill  stated,  in  substance,  that 
Seba  Eastman,  in  October,  1828,  executed  a 
lease  of  a  certain  farm,  described  in  the  bill,  to 
the  defendant  and  his  wife,  during  their  nat- 
ural lives,  and  afterwards,  in  February,  1833, 
conveyed  his  reversionary  interest  in  the  farm 
to  the  orator.  The  bill  then  alleged  that  the 
defendant  had  committed  waste  on  the  prem- 
ises, and  especially  upon  a  sugar  orchard,  by 
cutting  down  and  carrying  away  and  selling 
the  wood  and  timber  growing  thereon,  and 
concluded  with  a  prayer  for  an  injunction  to 
stay  further  waste,  and  that  the  defendant 
might  be  decreed  to  account  to  the  orator  for  | 
such  as  had  been  committed.  The  substance 
and  amount  of  the  testimony  will  appear  from 
the  opinion  of  the  court,  delivered  by 

BENNETT,  Chancellor.  The  great  subject 
of  complaint  seems  to  be  the  destruction  of  the 
sugar  orchard,  which  it  is  alleged  has  been  cut 
down  and  destroyed  since  the  orator  became 
possessed  of  the  reversionary  interest,  in  Feb- 
ruary, 1832.  It  is  unnecessary  to  go  into  the 
particulars  of  the  evidence,  which  is  quite  vo- 
luminous, and  is  evidently  somewhat  contra- 
dictory; but  suffice  it  to  say  that  it  seems  to  be 
pretty  well  established  from  the  current  of  the 
testimony,  that  the  principal  part  of  the  chop- 
ping in  the  sugar  orchard  was  prior  to  the  win- 
ter of  1832,  and  this  too  by  Seba  Eastman  and 
Charles  Eastman,  while  Seba  had  the  rever- 
sionary interest.  The  whole  evidence  taken 
together  satisfies  the  court  that  the  farm,  on 
the  whole,  has  been  managed  by  the  tenant  for 
life,  in  a  prudent  and  husbandlike  manner;  and 
that  there  have  been  no  acts  of  wantonness  on 
the  part  of  the  defendant,  or  disregard  to  the 
ultimate  value  of  the  reversionary  interest. 
Indeed,  the  value  of  the  property  seems 
to  *have  been  enhanced  by  the  better-  *294 
ments  and  good  husbandry  of  the  defend- 
ant. We  are  not  aware  of  any  decisions  in  the 
courts  of  this  state,  laying  down  any  precise 
rules  establishing  what  acts  shall  constitute 
waste;  and,  indeed,  it  is  difficult  there  should 
beany.  The  general  principle  is  that  the  law 
considers  every  thing  to  be  waste  which  does  a 
permanent  injury  to  the  inheritance.  Coke 
Litt.  53,  54.  Jacob's  Law  Uic.  6  Vol.  393,  Tit. 
Waste.    7  Com.  Dig.  Tit  Waste. 

By  the  principles  of  the  ancient  common  law. 


many  acts  were  held  to  constitute  waste — such 
as  the  conversion  of  wood,  meadow  or  past- 
ure, into  arable  land,  and  of  woodland  into 
meadow  or  pasture  land — to  which  we  might 
not,  at  the  present  day,  be  disposed  to  give  that 
effect.  These  principles  must  have  been  intro- 
duced when  agriculture  was  little  understood, 
and  they  are  not  founded  in  reason,  and  many 
of  them  are  inconsistent  with  the  most  impor- 
tant improvements  in  the  cultivation  of  the 
soil.  In  England  that  species  of  wood,  which 
is  designated  as  timber,  shall  not  be  cut,  be- 
cause the  destruction  of  it  is  considered  an  in- 
jury done  to  the  inheritance;  and,  therefore, 
waste.  From  the  different  state  of  many  parts 
of  our  country  a  different  rule  should  obtain  in 
our  courts;  and  timber  may  and  must,  in  some 
cases,  to  a  certain  extent,  be  cut  down,  but  not 
SD  as  to  cause  damage  to  the  inheritance.  To 
what  extent  a  tenant  forlife  can  be  justified  in 
cutting  wood,  before  he  shall  be  guilty  of  waste, 
must  depend  upon  a  sound  discretion  applied 
to  the  particular  case.  It  is  not  in  this  state 
waste,  to  cut  down  wood  or  timber,  so  as  to  fit 
the  land  for  cultivation,  provided  this  would 
not  damage  the  inheritance,  and  would  be  ac- 
cording to  the  rules  of  good  husbandry,  taking 
into  view  the  location  and  situation  of  the 
whole  farm.  So,  to  remove  the  dead  and  de- 
caying trees,  whether  for  the  purpose  of  clear- 
ing the  land,  or  giving  the  green  timber  a  bet- 
ter opportunity  to  come  to  maturity,  is  not 
waste.  We  are  satisfied  that,  when  the  wood 
or  timber  is  cut  with  this  intent,  and  is  accord- 
ing to  ajudicious  course  of  husbandry,  the  ten- 
ant is  not  guilty  of  waste,  though  the  wood  or 
timber  so  cut  may  have  been  sold,  or  consumed 
off  of  the  farm.  This  farm,  it  is  to  be  remem- 
bered, is  comparatively  in  a  state  of  nature, 
and  the  town  in  which  it  is  situated  com- 
*295  paratively  *new;  and  what  might  consti- 
tute waste,  as  applied  to  one  farm  in  one 
place,  might  not,  when  applied  to  another,  in 
a  different  place. 

Though  the  evidence  is  somewhat  contra- 
dictory, we  are  not  satisfied  that  the  defendant 
has  gone  beyond  his  rights.  The  orator's  bill 
is  therefore  dismissed.  But  inasmuch  as  the 
defendant  has  made  declarations  claiming  the 
right  to  cut  off  all  the  wood  and  timber  from 
the  farm  if  he  chose  to  do  it,  and  threatened 
the  doing  of  it,  the  bill  was  not  brought  with- 
out some  apparent  cause,  and  the  defendant  in 
this  particular  is  not  without  fault;  it  is  there- 
fore, dismissed  without  costs. 

R.  R.  Thrall  and  E.  N.  Briggs,  for  orator 
E.  L.  Ormsbee,  for  defendant. 


WASTE. 


127 


LOOMIS  V.  WILBUR. 
(Fed.  Cas.  No.  8,498,  5  Mason,  13.) 
Circuit  Court,  D.  Rhode  Island.  Nov.  Term, 
1827. 
This  was  an  action  of  waste  under  the 
statute  of  Rhode  Island  (see  Dig.  1S22,  p. 
199),  for  the  recovery  of  the  freehold  wasted. 
Plea,  the  general  issue.  Daniel  Wilbur,  de- 
ceased, by  his  will,  made  on  the  20th  De- 
cember, 1802,  and  proved  on  1st  of  June,  1807, 
devised  all  his  lands  undisposed  of,  includ- 
ing the  premises,  to  his  son  Daniel  Wilbur, 
the  defendant,  for  his  life,  remainder  to  his 
wife  for  her  life,  if  she  survived  him,  re- 
mainder to  Daniel  Wilbur,  his  grandson,  and 
son  of  his  son  Daniel,  in  fee;  but  if  his  said 
grandson  died  before  21  years  of  age,  &c. 
then  to  his  son  Daniel  in  fee.  The  grand- 
son attained  the  age  of  21  years  and  is  still 
living.  The  grandson  sold  his  interest  in  the 
estate  to  one  James  Aldrich,  through  whom, 
and  by  intermediate  conveyances,  and  a  levy 
on  execution,  the  premises  came  to  the  plain- 
tiff [Luther  Loom  is]  on  the  23d  of  December, 
1825.  The  only  waste  proved  was,  the  cut- 
ting of  a  few  timber  trees  sparsely  on  the 
land,  not  exceeding  ten  or  fifteen  in  number. 
It  was  proved,  that  the  defendant  was  very 
poor  and  unable  to  repair  the  fences  and 
buildings  from  other  means;  that  the  prin- 
cipal part  of  the  trees  were  cut  down  for  re- 
pairs of  the  buildings.  They  were  sold  by 
an  agent,  and  boards,  already  sawed,  &c. 
were  purchased  with  the  proceeds  and  ap- 
plied to  the  repairs.  This  was  the  most 
economical  way  of  attaining  the  object,  and 
most  for  the  benefit  of  the  estate,  and  was 
done  on  consultation  with  the  agent,  be- 
fore the  trees  were  cut  down.  It  was  also 
proved,  that  a  .timber  tree  or  two  were  cut 
down  and  sold;  but  whether  the  proceeds 
were  applied  to  repairs  did  not  appear.  But 
it  did  appear,  that  the  defendant  owned  a 
contiguous  wood  lot,  and  sometimes  used 
the  timber  from  that  lot  for  fire  bote  au<i 
house  bote. 

The  plaintiff  contended,  that  the  case  of 
waste  was  clearly  made  out,  and  that  the 
sale  of  the  timber  was  waste,  by  the  authori- 
ties; that  the  tenant  might  have  cut  down 
trees  for  the  necessary  repairs  and  fire  bote, 
but  had  no  right  to  sell  them;  and  he  cited 
Bac.  Abr.  "Waste,"  F.  The  defendant  con- 
tended, that  there  was  no  waste;  that  no 
injury  was  done  to  the  estate;  that  repairs 
were  necessary;  and  there  was  no  difference 
between  applying  the  proceeds  of  the  sale 
and  the  identical  timber. 

Mr.  Richmond,  for  plaintiff. 
Mr.  Tillinghast,  for  defendant. 

STORY,  Circuit  Justice  (charging  jury). 
The  supposed  waste  in  this  case  is  so  very 
small  in  point  of  value,  that  if  a  forfeiture 
is  incurred,  it  must  operate  with  peculiar 
severity.  The  jury  therefore  ought  clearly 
to  see,  that  the  plaintiff  makes  out  his  case 
upon  reasonable  evidence.     The  question  in 


cases  of  this  nature  is,  whether  the  tenant 
has  done  any  injury  to  the  inheritance;  for 
the  averment  in  th^  declaration  is,  that  the 
timber  has  been  cut  down  to  his  disherison. 
If,  under  all  the  circumstances,  what  has 
been  done,  has  been  for  the  benefit  of  the 
estate,  for  necessary  repaira,  and  for  the  in- 
terest of  the  remainder-man,  then  there  has 
been  no  waste.  Now  it  is  admitted,  that 
the  tenant  is  vei-y  poor  and  had  no  other 
means  to  repair;  and  that  the  repairs  were 
indispensable,  and  any  longer  omission 
would  have  been  very  injurious  to  the  estate. 
The  quantity  of  timber  applied  to  the  repairs 
is  not  pretended  to  be  extravagant  or  un- 
necessary. But  it  is  said,  that  the  same 
timber,  which  was  cut  down,  ought  to  have 
been  applied,  and  not  sold,  and  that  the  sale 
was  per  se  waste.  For  this  position  reliance 
is  placed  on  a  citation  from  Bac.  Abr. 
"Waste,"  F,  where  it  is  said,  that  if  a  lessee 
cuts  trees  and  sells  them  for  money,  though 
with  the  money  he  repairs  the  house,  it  is 
waste.  The  authority  relied  on  in  Bac.  Abr. 
is  1  Co.  Litt.  53b.  The  doctrine  there  stated 
may  be  good  law,  if  it  be  properly  understood 
and  limited.  If  the  cutting  down  of  the 
timber  was  without  any  intention  of  repairs, 
but  for  sale  generally,  the  act  itself  would 
doubtless  be  waste;  and  if  so,  it  would  not 
be  purged  or  its  character  changed,  by  a 
subsequent  application  of  the  proceeds  to 
repairs.  But  if  the  cutting  down  and  sale 
were  originally  for  the  purpose  of  repairs, 
and  the  sale  was  an  economical  mode  of 
making  the  repairs,  and  the  most  for  the 
benefit  of  all  concerned,  and  the  proceeds 
were  bona  fide  applied  for  that  purpose,  in 
pursuance  of  the  original  intention,  it  does 
not  appear  to  me  to  be  possible,  that  such  a 
cutting  down  and  sale  can  be  waste.  It 
would  be  repugnant  to  the  principles  of 
common  sense,  that  the  tenant  should  be 
obliged  to  make  the  repairs  in  the  way  most 
expensive  and  injurious  to  the  estate. 

As  to  the  other  part  of  the  case,  the  sale 
of  one  or  two  trees,  the  application  of  which 
to  repairs  is  not  established,  it  is,  if  at  all, 
waste  in  its  most  minute  form.  But  the 
jury  will  judge  of  the  facts,  and  consider  in 
the  first  place,  whether  the  proceeds  might 
not  have  been  applied  to  the  repairs.  In 
the  next  place,  if  they  were  not,  but  if  an 
equal  quantity  of  timber  from  the  other 
woodlot  of  the  defendant  was  so  ap-plied, 
and  these  trees  were  only  taken  by  way  of 
compensation  and  remuneration  therefor, 
then  there  was  no  waste.  It  has  been  said, 
that  the  terms  of  the  will  make  the  tenant 
for  life  dispunishable  of  waste,  and  that  the 
intention  was  to  give  him  a  full  and  entire 
control  of  the  inheritance  during  his  life. 
The  words  are  certainly  very  broad  and  com- 
prehensive, giving  ample  powers  to  a  tenant 
for  life  for  general  purposes;  but  my  opinion 
is,  that  they  do  not  authorize  any  act  to  be 
done,  which  injures  the  inheritance,  much 
less  do  they  authorize  positive  waste. 

Verdict  for  the  tenant. 


128 


ESTATES  IN   REAL   PROPERTY. 


WEBSTER  et  al.  v.  PEET  et  al. 

(56  N.  W.  558,  97  Mich.  326.) 

Supreme  Court  of  Michigan.     Oct.  27,  1893. 

Appeal  from  circuit  court,  Gratiot  county, 
In  chancery;    Sherman  B.  DaboU,  Judge. 

Bill  by  Charles  E.  Webster  and  Nathan 
Church,  for  themselves  and  as  trustees  for 
Church,  Bills  &  Co.,  First  National  Bank  of 
Ithaca,  Mich.,  the  Nelson  Barber  Company, 
Parish  &  Scott,  George  P.  Stone,  Wolf  Net- 
zorg,  William  Pullen,  O.  H.  Heath  &  Sons, 
Ithaca  Milling  Company,  and  Robert  Smith, 
against  Nelson  G.  Peet  and  Ann  L.  Peet,  to 
quiet  title  and  resti'ain  waste.  Decree  for 
complainants.    Defendants  appeal.    Affirmed. 

J.  H.  Winton  and  Mitchel  &  Hawley,  for 
appellants.  Stone  &  Salter  and  John  M. 
Everden,  for  appellees. 

MONTGOMERY,  J.  One  Kosciusko  P. 
Peet  was  indebted  to  various  persons  and 
firms  to  an  amoiml  aggregating  $3,150.41. 
He  was  the  owner  of  a  farm  of  320  acres, 
100  of  which  was  cleared,  and  the  balance 
woodland,  the  farm  being  subject  at  the  time 
to  two  mortgages,  amoimtmg  to  about  $3,- 
700.  To  secure  the  creditors  first  mentioned, 
he  gave  to  complainants,  as  trustees  for  the 
creditors,  a  deed  of  the  lands  above  referred 
to,  subject  to  the  mortgages  then  upon  the 
land.  The  deed  was  in  the  usual  form,  with 
a  recitation  added  that  the  conveyance  was 
for  the  benefit  of  the  creditors  named,  and 
with  the  following  further  clause:  "This 
conveyance  is  made  to  said  trustees,  with 
full  power  grantetl  to  them  to  sell,  convey, 
mortgage,  or  otherwise  assign  or  transfer 
the  same  for  the  purpose  of  paying  and  sat- 
isfying the  aforesaid  claims  and  the  neces- 
sary expenses,  the  residue  or  remainder,  if 
any,  after  the  satisfaction  of  said  above-de- 
scribed claims,  to  belong  to,  and  to  be  re- 
turned to,  the  said  parties  of  the  first  part." 
The  deed  was  acknowledged  June  13,  1891, 
aud  duly  recorded.  On  the  9th  of  February, 
1892,  the  defendant  Ann  L.  Peet  took  a  con- 
veyance from  Kosciusko  P.  Peet,  which  con- 
veyance contained  an  attempted  revocation 
of  the  power  of  attorney  in  the  deed  of  Jime 
13,  1891.  The  defendants,  who  had  been  in 
possession  under  Kosciusko  P.  Peet,  re- 
mained in  possession  after  the  conveyance  to 
complainants,  and,  upon  the  conveyance  be- 
ing made  to  Ann  L.  Peet,  she  claimed  title, 
and  the  right  to  cut  and  remove  timber. 
The  biU  in  this  case  was  filed  with  the 
double  pm-pose  of  setting  aside  the  convey- 
ance to  Ann  L.  Peet  as  a  cloud  upon  com- 
plainants' title,  and  to  restrain  defendants 
from  committing  waste.  The  latter  was  the 
only  relief  granted  below.  Defendants  ap- 
peal.    Complainants  do  not  appeal. 

1.  It  is  claimed  that  the  conveyance  to 
complainants  amoimted  to  no  more  than  a 
mortgage,  and  that,  as  the  bill  is  predicated 
upon  the  claim  that  complainants  are  the  ac- 
tual owners  of  the  land,  the  relief  was  im- 


properly granted.  We  think  the  contention 
cannot  be  allowed.  The  deed  itself  is  set 
out  in  full  in  the  bill  of  complainants,  and, 
if  the  facts  are  sufticient  to  justify  the  relief 
gi'anted,  it  is  immaterial  that  the  complain- 
ants, in  their  bill,  assert  a  broader  claim  than 
the  facts  which  they  also  disclose  in  their 
bill  justify. 

2.  It  is  claimed  as  a  matter  of  fact  for  the 
defense  that  either  after  the  deed  was  made, 
or  after  instructions  given  to  the  scrivener 
for  its  preparation,  additional  claims  were 
inserted,  not  agreed  upon  between  the  par- 
ties, and  that  this  in  either  case  constitutes 
the  deed  a  forgery.  A  careful  examination 
of  the  testimony  upon  this  point  convinces 
us  that  this  defense  is  not  made  out.  It 
would  not  be  profitable  to  quote  the  testi- 
mony at  leugtli,  but  it  is  suflicient  to  say 
that  we  are  satisfied  that  the  conclusion  of 
the  circuit  judge,  who  saw  the  witnesses, 
upon  this  point,  is  not  only  well  supported 
by  the  testimony,  but  that,  upon  the  record 
as  made  in  this  court,  we  think  no  other  con- 
clusion can  be  reached  without  doing  vio- 
lence to  the  natural  inferences  and  probabili- 
ties which  surround  the  case. 

3.  It  is  claimed  that  no  waste  was  being 
committed.  The  bill  avers  that  the  defend- 
ants, without  permission  or  authority  from 
complainants,  were  at  the  time  of  filing  the 
bill  engaged  in  cutting  down  and  drawing 
away  the  trees  and  timber,  and  tlireatening 
and  preparing  and  intending  to  continue  in 
cutting  and  carrying  away  the  timber  and 
trees  growing,  standing,  lying,  and  being  on 
said  premises.  The  answer  set  out  that  the 
deed  under  which  complainants  claimed  was 
a  forgery.  The  answer  does  not  deny  the 
intention  to  continue  cutting  timber,  but 
states  that  "the  timber  taken  off  said  land 
by  these  defendants  was  elm,  three  thousand 
feet,  all  down  timber,  cut  a  year  ago  last 
winter;  red  oak,  three  thousand  seven  hun- 
dred and  thirty-six  feet;  black  ash,  five  hun- 
dred and  forty-five  feet;  white  oak,  six  hun- 
dred and  seventy  feet;  bass  wood,  two  hun- 
dred and  forty-four  feet;  and  all  of  said  tim- 
ber was  cut  on  lands  to  be  cleared,  except 
the  white  oak,  six  hundred  and  seventy  feet." 
It  appears,  therefore,  that  there  is  an  ad- 
mission of  the  cutting  of  some  timber  not 
for  the  pm-pose  of  husbandly,  and  wliich 
was  not  done  for  the  pm-pose  of  clearing  the 
land.  We  thinlv  this  constitutes  waste,  and 
particularly  where  it  was  done  in  denial  of 
complainants'  riglits,  and  was  sufficient  in 
itself,  in  the  absence  of  denial,  to  justify  the 
inference  that  the  defendants  were  liable 
to  continue  to  commit  waste,  and  authorized 
the  injunction  issued  in  the  case.  It  is  to  be 
regretted  that  the  complainants  did  not  put 
the  case  in  such  form  as  to  admit  of  adjust- 
ing the  rights  of  the  parties  in  this  proceed- 
ing. It  is  immaterial  whether  the  instru- 
ment of  conveyance  to  complainants  be  treat- 
ed as  an  irrevocable  power  to  convey  and 
dispose  of  the  lands  for  the  purpose  of  sat- 
isfying the  debts  of  the  creditors  named,  or 


WASTE. 


l^i> 


whether,  ou  the  other  hand,  it  be  treated  as 
a  mortgage  refluirme:  foreclosure  proceedings 
before  a  sale.  In  either  event,  it  is  clear 
that  the  instrument  M-as  intended  for  the  se- 
curity of  the  creditors,  and  the  grantor  and 
GATES,R.P.-9 


those  claiming  imder  him  would  nave  the 
right  to  redeem,  and  to  a  recouveyanco  upon 
payment  of  the  claims.  The  decree  below 
will  stand  affirmed,  with  costs.  The  other 
justices  conciirred. 


130 


ESTATES  IN  REAL  PROPERTY. 


HORNER  V,  DEN  ex  dem.  LEEDS. 

(25  N.  J.  Law,  106.) 

Supreme  Court  of  New  Jersey.     June  Term, 
1855. 

Mr.  Halsted,  for  plaintiff  in  error.  Mr. 
Woodhull,  contra. 

POTTS,  J.  This  was  an  action  of  eject- 
ment, brought  to  recover  possession  of  a  tract 
of  land  on  Absecum  Beach,  in  the  county  of 
Atlantic.  The  defendant  below,  John  Horner, 
to  maintain  his  title  to  six  acres  of  the  tract 
which  he  claimed,  gave  in  evidence  a  certain 
instrument  under  seal,  executed  and  acknowl- 
edged by  Jeremiah  Leeds,  in  the  words  follow- 
ing: 

"This  indenture,  made  the  first  day  of  April, 
eighteen  hundred  and  sixteen,  between  Jere- 
miah Leeds,  of  the  one  part,  and  John  Blake, 
of  the  other  part,  witnesses  that  the  said  Jere- 
miah Leeds  doth  demise,  grant,  and  to  farm 
let,  unto  the  said  John  Blake,  his  executors, 
administrators  and  assigns,  all  that  messuage 
and  privilege  of  erecting  a  salt  works  on  N.  E. 
end  of  Absecum  Beach,  with  the  privilege  of 
setting  a  dwelling  house  thereon;  also  the  priv- 
ilege of  pasture  for  two  cows,  with  what  team 
the  works  may  want,  situate,  lying,  and  being 
in  the  township  of  Eggharbor,  in  the  county  of 
Gloucester,  and  state  of  New  Jersey,  with  all 
and  singular  the  appurtenances  thereunto  "be- 
longing, for  any  term  of  years  the  said  John 
Blake  may  think  proper  from  the  above  date, 
for  the  consideration  of  the  sum  of  one  hun- 
dred dollars,  to  be  laid  out  by  the  said  Blake  or 
his  assigns,  in  the  aforesaid  salt  works,  for  the 
use  of  the  said  Jeremiah  Leeds,  which  is  to 
be  considered  as  two  shares  in  said  works,  that 
is  to  say  fifty  dollars  per  share,  it  being  part  of 
my  plantation  whereon  I  now  dwell,  will  war- 
rant and  forever  defend,  at  any  term  or  terms, 
of  years  unto  the  said  John  Blake,  his  heirs, 
executors,  administrators,  or  assigns,  or  any  of 
them,  to  have  and  to  hold  the  said  privileges 
unto  said  John  Blake,  his  heirs  and  assigns 
shall  hold  and  enjoy  the  said  premises;  with- 
out the  lawful  let  or  eviction  of  him,  the  said 
Jeremiah  Leeds,  his  heirs,  executors,  adminis- 
trators, or  assigns,  or  any  of  them,  or  any  per- 
son or  persons,  lawfully  claiming  by,  from,  or 
under  them,  or  any  of  them,  or  of  the  lawful 
<.-laim  of  any  person  or  persons,  whatsoever, 
freed  and  indemnified  against  all  former  claims 
iiud  encumbrances  whatsover,  made  and  com- 
mitted, or  to  be  made,  committed,  done,  or 
suffered  by  the  said  Jeremiah  Leeds,  his  heirs, 
or  any  person  or  persons  having  or  lawfully 
claim  or  to  claim,  by,  from,  or  under  him, 
them,  or  any  of  them.  In  witness  whereof  the 
said  Jeremiah  Leeds  has  to  these  presents  set 
his  hand  and  seal,  the  day  and  year  first  above 
written.  Jeremiah  Leeds.    [L.  S.] 

"Sealed  and  delivered  in  the  presence  of  John 
DanieL 

her 
"Rachel    X    Steelman." 
mark 


The  plaintiff  claimed  title  through  Jeremiah 
Leeds,  and  the  defendant  throagh  Blake;  and 
the  principal  questions  argued  by  the  counsel 
here  were: 

(1)  Whether  this  instnmient  was  a  lease  or 
a  conveyance  in  fee  of  the  land. 

(2)  If  a  lease,  when  and  how  it  was  deter- 
minable;   and — 

(3)  Whether  it  created  such  a  tenure  as  re- 
quired a  legal  notice  to  quit  before  ejectment 
could  be  maintained. 

The  court  charged  the  jury  that  it  was  a 
lease;  that  the  term  expired  when  the  lessees 
abandoned  the  manufacture  of  salt;  and  that 
as  such  abandonment  was  their  own  act,  no  no- 
tice to  quit  was  necessary. 

To  this  instruction  of  the  court  the  defendant 
excepted. 

The  verdict  was  for  the  plaintiff  below. 

The  instrument,  as  will  be  perceived,  is  ver-y 
inartificially  drawn,  contains  a  good  deal  of  am- 
biguous phraseology,  and  was  very  well  char- 
acterized at  the  circuit  as  "a  badly  drawn  pa- 
per." But  still  I  think  its  meaning  can  be  as- 
certained with  reasonable  certainty. 

It  is  a  demise  of  a  messuage  on  the  northeast 
end  of  Absecum  Beach,  for  the  purpose,  I  take 
it,  of  erecting  salt  works  thereon,  to  John 
Blake,  his  executors,  administrators,  and  as- 
signs; and  with  the  privilege  of  erecting  a 
dwelling  house  thereon,  and  pasturage  for  two 
cows  and  such  teams  as  may  be  required  iu 
carrying  on  the  proposed  salt  works.  The 
words  used  are  "demise,  grant,  and  to  farm 
let,"  and  these  are  the  usual  terms  by  which  a 
lease  is  made  according  to  the  Englisii  prece- 
dents (Com.  Landl.  &  Ten.;  6  Law  Lib.  o4: 
Woodf.  Landl.  &  Ten.  4);  though  the  word 
"grant"  is  not  commonly  used  in  our  forms  of 
conveyancing  when  a  term  of  years  only  is 
meant  to  be  conveyed.  Oliver,  in  his  work  on 
Conveyancing  (290),  adopts  the  words  "demise, 
lease,  and  to  farm  let";  and  in  2  Graydon. 
Forms  Conv.  41,  43,  we  have  both  "demise,  set. 
and  to  farm  let,"  and  "demise,  lease,  and  to 
farm  let."  It  is  well  settled,  however,  that  the 
words  "give,"  "grant,"  "lease,"  or  "set"  are 
eciually  proper,  and  have  come  to  be  used  in- 
discriminately in  instruments  of  this  character. 

The  time  for  which  the  premises  are  demised 
is  expressed  to  be  "for  any  term  of  years  the 
said  Blake  may  think  proper  from  the  above 
date."  This  is  certainly  an  unusual  limitation 
of  a  term.  Literally  taken,  it  means  that  the 
demise  is  for  a  term  of  years  only,  but  that  that 
term  is  to  run  during  Blake's  pleasure — as  long 
as  he  thinks  proper.  If,  however,  we  can 
gather  from  the  whole  instrument  the  intention 
of  the  parties,  that  intention  must  govern.  Now 
the  object  had  in  view  by  the  parties  at  the 
time  was  the  erection  of  salt  works,  and  the 
carrying  on  of  the  business  of  manufacturing 
salt  on  the  premises.  Except  in  the  use  of  the 
technical  words  demise,  grant,  and  to  farm  let, 
there  is  nothing  in  the  language  of  the  instru- 
ment which  indicates  an  intention  that  the 
premises  should  be  used  for  any  other  purpose 
than  that  of  erecting,  maintaining,  and  carry- 


ESTATE  FOR  YEARS. 


131 


ina:  on  the  work  and  business  of  manufacturing 
^alt,  and  such  other  uses  as  were  necesssary 
and  incidental  to  such  a  business.  It  is  the 
"privilege"  of  erecting  salt  works,  the  "privi- 
lege" of  setting  a  dwelling  house  on  the  prem- 
ises, and  the  "privilege"  of  pasturing  two  cows, 
with  what  teams  the  works  may  want.  The 
habendum  is  to  have  and  to  hold  the  said  "priv- 
ileges;" and  the  instrument  gives  no  descrip- 
tion of  the  premises  by  metes,  bounds,  or  quan- 
tity, though  there  is  a  description  appended  to 
it  by  way  of  note  or  memorandum.  Doubt- 
less the  demise  is  of  the  land,  with  the  privi- 
leges; but  we  are  looking  for  the  general  in- 
tent of  the  parties. 

Then  again,  when  we  look  for  the  considera- 
tion of  the  grant,  we  find  that  it  is  an  interest 
in  the  salt  works.  As  the  instrument  express- 
es it,  the  demise,  "is  for  the  consideration  of 
the  sum  of  $100,  to  be  laid  out  by  the  said 
Blake,  or  his  assigns,  in  the  aforesaid  salt 
works,  for  the  use  of  the  said  Jeremiah  Leeds, 
which  is  to  be  considered  as  two  shares  in  said 
works,  that  is  to  say  $50  per  share."  The  re- 
turn for  the  land,  therefore,  was  in  substance 
the  dividends  of  two  shares,  a  portion  of  the 
profits  of  the  contemplated  business  of  manu- 
facturing salt. 

Was  it  the  intention,  the  understanding  of  the 
parties,  that  Blake  was  to  have  the  land,  and 
refuse  to  erect  the  works,  or  carry  on  the  busi- 
ness of  manufacturing  salt?  or  hold  it  longer 
than  he  continued  the  business  out  of  the  prof- 
its of  which  the  rent  was  to  come?  It  is  like 
a  lease  of  a  fishery  for  the  annual  render  of  a 
certain  share  of  the  fish  caught,  or  a  mine  for 
a  share  of  the  ore  excavated,  or  a  mill  site 
for  a  share  of  the  profits  of  a  mill  to  be  erected 
by  the  tenant.  Could  the  tenant  hold  the  prem- 
ises and  refuse  to  fish  the  fishery,  or  work  the 
mine,  or  erect  the  mill,  and  carry  on  the  busi- 
ness, even  though  the  lease  was  for  such  term 
as  the  tenant  might  think  proper?    I  think  not. 

But  it  is  insisted  that  the  habendum  in  this 
instrument  is  to  Blake  and  his  heirs,  and  that 
this  must  govern  the  construction,  because  it  is 
the  ofiice  of  the  habendum  to  determine  the 
quantity  of  the  estate  granted.  Unfortunately, 
however,  for  the  argument,  it  is  far  from  being 
clear  that  the  habendum  is  to  the  heirs.  The 
words  are,  "to  have  and  to  hold  the  said  priv- 
ileges unto  the  said  John  Blake:  his  heirs  and 
assigns  shall  hold  and  enjoy  the  said  premises 
without  the  let  or  eviction  of  him,  the  said 
Jeremiah  Leeds,"  &c.  All  the  words  following 
the  name  John  Blake  belong  to  the  covenants 
rather  than  to  the  habendum  clause. 

The  duration  of  a  term,  if  not  definitely  ex- 
pressed in  a  lease,  may  be  fixed  by  reference 


to  collateral  or  extrinsic  circumstances.  Com. 
Landl.  &  Ten.;  6  Law  Lib.  50.  And  it  was 
in  evidence  in  this  case  that  a  company  was 
organized  for  the  manufacture  of  salt  on  the 
premises  immediately  after  the  date  of  the  in- 
strument in  question;  and  that  Blake,  for  a 
small  consideration,  forthwith  assigned  all  his 
right  to  the  premises  to  this  company  for  the 
purpose  of  a  salt  works,  and  for  as  long  as  the 
company  might  choose,  reciting  this  instrument 
in  his  said  assignment  as  a  lease  from  Leeds. 

Upon  the  whole,  I  am  of  opouion  that  this 
instrument  must  be  taken  to  be  a  lease  for  so 
long  a  term  as  the  lessees  should  use  the  prem- 
ises for  the  purpose  of  manufacturing  salt,  and 
no  longer;  that  such  was  the  intention  of  the 
parties,  as  is  fairly  deducible  from  the  whole 
instrument;  that  it  is  the  only  reasonable  con- 
struction which  can  be  given  to  it;  and  that  is  a 
construction  in  accordance  with  the  subsequent 
conduct  of  the  parties  and  their  successors,  &c. 

If  this  is  so,  the  lease  was  for  a  term  deter- 
minable upon  the  happening  of  a  certain  event, 
to  wit,  the  abandonment  of  the  manufacture  of 
salt  by  the  lessees:  and  as  that  abandonment 
was  their  own  act,  they  were  not  entitled  to 
notice  to  quit.  Comyn,  285;  6  Law  Lib.  160; 
Right  V.  Darby,  1  Term  R.  162;  Den  v.  Ad- 
ams, 12  N.  J,  Law,  101. 

There  was,  therefore,  no  error  in  the  charge 
of  the  court. 

Two  other  exceptions  were  taken  in  the  course 
of  the  trial.  The  first  was  to  the  admission  of 
certain  deeds  in  evidence,  forming  part  of  the 
plaintiff's  chain  of  title.  These  deeds  are  not 
before  the  court,  nor  does  the  ground  of  objec- 
tion to  them  appear;  but  inasmuch  as  the  de- 
fendant subsequently  set  up  the  above  men- 
tioned lease  from  Leeds,  he  precluded  himself 
from  taking  advantage  of  any  defect  of  this 
sort,  for  a  tenant  is  not  permitted  to  deny  the 
title  of  him  under  whom  he  claims. 

The  second  exception  was  to  the  ruling  of 
the  court,  refusing  to  admit  evidence,  offered 
by  the  defendant,  of  an  alleged  declaration  of 
the  lessor  of  the  plaintiff,  that  he  had  sold  the 
premises.  It  is  true  that  a  tenant  may  show, 
in  an  action  of  ejectment  by  the  landlord,  that 
the  landlord's  title  has  expired,  or  that  he  has 
sold  his  interest  in  the  premises.  2  Greenl.  Ev. 
§  305. 

But  I  am  not  aware  that  it  has  ever  been 
held  that  this  may  be  shown  by  merely  produ- 
cing a  witness  to  swear  that  the  lessor  of  the 
plaintiff  told  him  he  had  sold.  To  let  in  loose 
evidence  of  this  description  might  work  serious 
mischief. 

The  judgment  below  should  be  affirmed. 

GREEN,  C.  J.,  and  OGDEN,  J.,  concurred. 


132 


ESTATES  IN  REAL  PROPERTY. 


BRANT  V.  VINCENT. 

(59  N.  W.  169,  100  Mich.  426.) 

Supreme   Court   of    Michigan.     May   22,    1894. 

Error  to  circuit  court,  Berrien  coimty;  Thom- 
as O'Hara,  Judge. 

Summary  proceedings  by  Edward  Brant 
against  Alonzo  Vincent  to  recover  the  pos- 
session of  demised  premises.  There  was  a 
judgment  in  defendant's  favor,  and  plaintiff 
brings  error.     Affirmed. 

George  W.  Bridgmau  and  M.  L.  Howell, 
for  appellant.  G.  M.  Valentine  and  George 
I.  Clapp,  for  appellee. 

GRANT,  J.  Plaintiff  brought  summary 
proceedings  under  the  statute  to  recover  pos- 
session of  the  premises  described  in  the  com- 
plaint as  "that  portion  of  the  basement  in 
the  Brant  block,  about  21  feet  in  width  by 
about  75  feet  in  length,  under  what  is  now 
the  post  office  in  the  city  of  Benton  Harbor, 
being  the  south  75  feet  of  the  basement 
room."  Plaintiff  is  the  owner  of  the  prem- 
ises known  as  the  "Hotel  Benton  Block." 
July  21,  1890,  he  executed,  a  lease  to  the 
defendant,  for  five  years,  of  the  hotel  and 
portions  of  the  basement,  not,  however,  in- 
cluding the  portion  here  in  dispute.  De- 
fendant held  possession  under  a  parol  agree- 
ment. What  that  agreement  was  is  the 
main  fact  in  dispute.  Mr.  Brant's  "version 
is  that  it  was  agreed  that  defendant  might 
prepare  the  room  for  occupancy,  and  use  it 
until  complainant  needed  it  for  some  other 
pm-pose.  Defendant's  version  is  that  he  was 
to  prepare  it  for  occupancy,  and  have  pos- 
session during  the  life  of  his  hotel  lease,  or 
until  July  16,  1895.  The  agreement  was 
made  about  August  1,  1892.  Complainant, 
under  the  theory  that  defendant  was  tenant 
at  will,  gave  defendant  three  months'  notice 
to  quit,  and  then  instituted  this  suit.  The 
coiu-t  insti'ucted  the  jury  that,  if  they  found 
the  agreement  as  claimed  by  complainant, 
he  was  entitled  to  recover.  If,  on  the  con- 
trary, they  found  the  agi'eement  as  claimed 
by  defendant,  it  was  a  tenancy  from  year  to 
year,  and  his  possess)  on  was  lawful  until 
the  end  of  the  second  year.  Verdict  and 
judgment  were  for  the  defendant. 

It  is  conceded  that,  under  the  defendant's 
version,  the  lease,  resting  in  parol,  was  void 
under  the  statute  of  frauds.  Did  it  consti- 
tute a  tenancy  from  year  to  yeai"?  We 
think  it  did.  Defendant's  testimonj'  tended 
to  show  that  he  immediately  performed  his 
part   of   the   agreement,    and   fitted   up   the 


room  at  an  expense  of  ?140.  He  had  been 
in  possession  one  year,  and  a  greater  part  of 
the  second,  without  objection.  It  is  argued, 
on  behalf  of  the  complainant,  that  there  was 
no  annual  rent  reserved,  and  therefore,  even 
under  the  defendant's  evidence,  the  agree- 
ment constituted  a  tenancy  at  will.  It  is 
true  that  "the  reservation  of  annual  rent  is 
the  leading  circumstance  that  turns  leases 
for  uncertain  terms  into  leases  fi-om  year 
to  year."  Jackson  v.  Bradt,  2  Caines,  169; 
Rich  v.  Bolton,  46  Vt.  84.  In  the  latter  case 
many  authorities  will  be  <'ound  cited.  But 
clearly  this  rule  is  not  applicable  to  a  parol 
tenancy  for  years,  void  under  the  statute, 
where  the  entire  rent  has  been  paid  in  ad- 
vance. Under  the  defendant's  evidence  he 
had  a  lease  which,  if  reduced  to  writing, 
would  have  been  valid  for  five  years.  H 
entered  into  possession  of  the  term.  Wt, 
think  there  is  no  well-considered  authority 
holding  that  he  was  not  a  tenant  from  year 
to  year.  The  fact  that  no  annual  rent  is 
reserved  is  not  conclusive  of  the  character 
of  the  tenancy.  Where  the  owner  of  a  farm 
rented  a  portion  of  it  by  parol  for  four  years, 
the  lessee  agreeing  to  inclose  the  premises 
with  a  fence  by  way  of  rent,  it  was  held  that 
a  tenancy  from  year  to  year  was  established. 
People  V.  Rickert,  8  Cow.  226;  Jackson  v. 
Bryan,  1  Johns.  322;   Tayl.  Landl.  &  Ten.  §  56. 

The  court,  at  complainant's  request,  in- 
structed the  jury  that  defendant  could  not 
recover  imder  any  agreement  made  before 
the  written  lease,  but  only  upon  a  verbal 
one  made  afterwards.  The  court,  under  ob- 
jection, permitted  evidence  of  conversations 
between  the  parties  in  regard  to  this  room 
prior  to  the  execution  of  the  written  lease. 
and  this  is  alleged  as  error,  on  the  ground 
that  all  prior  negotiations  were  merged  in 
it.  This  would  be  time  if  defendant  relied 
upon  the  written  lease.  But  the  testimony 
was  competent  as  bearing  xipon  the  subse- 
quent parol  agreement.  Had  the  defendant 
relied  upon  a  previous  or  contemporary 
agi'eement,  the  evidence  would  have  been 
incompetent. 

The  introduction  of  the  written  lease,  on 
the  part  of  the  defendant,  is  alleged  as  error. 
We  do  not  see  how  this  could  have  preju- 
diced the  complainant.  But,  be  that  as  it 
may,  it  was  competent  to  introduce  it  for 
the  purpose  of  showing  the  term  of  the 
parol  lease,  which  defendant  testified  was 
to  run  to  the  end  of  the  written  lease.  We 
find  no  error  in  the  record,  and  the  judgment 
is  affii'med.     The  other  justices  concurred. 


TEXANCy  AT  SUFFERANCE. 


133 


RUSSELL   V.   FABYAN. 

(34  N.  H.  218.) 

Supreme    Judicial   Court   of    New    Hampshire. 
Coos.    July  Term,  1856. 

Mr.  Lyford,  for  plaintiff.  H.  A.  Bellows,  for 
defendants. 

BELL,  J.  Fabyan  entered  into  possession  of 
the  premises  in  question  under  a  written  lease, 
to  continue  for  five  years  from  March  20,  1817. 
He  remained  in  possession  until  April  29,  18515, 
when  the  buildings  were  burned  down,  more 
than  a  year  after  the  lease  expired.  During 
the  interval  between  the  20th  of  March,  1852, 
and  April  29,  1853,  he  was  either  a  tenant  at 
sufferance,  a  tenant  at  will,  or  a  disseizor.  The 
general  principle  is  that  a  tenant  who,  without 
any  agreement,  holds  over  after  his  term  has 
expired,  is  a  tenant  at  sufferance.  2  BI.  Comm. 
150;  4  Kent,  Comm.  IIG;  Livingston  v.  Tan- 
ner, 12  Barb.  483.  No  act  of  the  tenant  alone 
can  change  this  relation;  but  if  the  lessor,  or 
owner  of  the  estate,  by  the  acceptance  of  rent, 
or  by  any  other  act  indicates  his  assent  to  the 
continuance  of  the  tenancy,  the  tenant  becomes 
a  tenant  at  will,  upon  the  same  terms,  so  far 
as  they  are  applicable,  of  his  previous  lease. 
Conway  v.  Starkweather,  1  Denio,  113. 

In  this  case  there  is  no  evidence  to  justify  an 
inference  of  assent  by  the  lessor  to  any  con- 
tinuance of  the  tenancy,  but,  on  the  contrary, 
very"  direct  and  conclusive  evidence,  in  the  de- 
mand of  possession,  to  the  contrary;  while  the 
reply  made  to  that  demand  by  Fabyan  nega- 
tives any  consent  on  his  part  to  remain  tenant 
of  the  plaintiff'.  There  was,  then,  no  tenancy 
in  fact  between  these  parties  at  the  time  of 
the  fire,  and  the  defendant  was  consequently 
either  a  disseizor  or  a  tenant  at  sufferance. 
When  the  demand  of  possession  was  made 
I  upon  Fabyan,  upon  the  22d  of  March,  1852,  the 
demand  was  refused,  Fabyan  saying  he  had 
taken  a  lease  of  the  property  from  Dyer.  The 
previous  demands  seem  to  have  been  premature, 
and  before  the  expiration  of  the  lease,  but  they 
were  refused  upon  the  same  ground  as  the  last, 
and  that  refusal  might  constitute  a  waiver  of 
any  objection  to  the  time  of  their  being  made. 
Such  a  denial  of  the  right  of  the  lessor,  though 
not  a  forfeiture  of  a  lease  for  years,  is  suf- 
ficient to  put  an  end  to  a  tenancy  at  will,  or  at 
sufferance,  if  the  lessor  elects  so  to  regard  it; 
and  he  may,  if  he  so  choose,  bring  his  action 
against  the  tenant  as.  a  disseizor,  without  en- 
try or  notice,  and  may  maintain  against  him 
any  action  of  tort,  as  if  he  had  originally  en- 
tered by  wrong.  Delaney  v.  Ga  Nun,  12  Barb. 
120. 

But  as  this  result  depends  on  the  lessor's 
election,  and  nothing  appears  in  the  present 
case  to  indicate  such  election,  the  tenant  must 
be  regarded  as  a  tenant  at  sufferance. 

To  ascertain  the  liability  of  a  tenant  at  suf- 
ferance for  the  loss  of  buildings  by  fire,  it  be- 
comes material  to  inquire,  what  is  the  nature 
of  this  kind  of  tenancy;   and  we  have  examined 


the  books  accessible  to  us,  to  trace  the  particu- 
lars in  which  it  differs  from  the  case  of  a  party 
who  originally  enters  by  wrong. 

All  the  books  agree  that  he  retains  the  pos- 
session as  a  wrongdoer,  just  as  a  disseizor  ac- 
quires and  retains  his  possession  by  wrong. 
Den  V.  Adams,  12  N.  J.  Law,  99;  2  Bl.  Comm. 
150;  4  Kent,  Comm.  116.  By  the  assent  of  the 
parties  to  the  continuance  of  the  possession 
thus  wrongfully  obtained  or  retained,  the  wrong 
is  purged,  and  the  occupant  becomes  a  tenant 
at  will  or  otherwise  to  the  owner.  10  Vin. 
Abr.  416,  "Estate,"  D,  C,  2. 

If  no  such  assent  appears,  the  tenant  is  en- 
titled to  no  notice  to  quit.  Jackson  v.  McLeon, 
12  Barb.  483;  12  Johns.  182;  1  Cruise,  Dig. 
tit.  9,  §  10. 

The  owner  may  make  his  entry  at  once  upon 
the  premises,  or  he  may  commence  an  action  of 
ejectment  or  real  action.  Livingston  v.  Tan- 
ner, 12  Barb.  483;  Den  v.  Adams,  12  N.  J. 
Law,  99.  And  it  makes  no  difference  that  the 
lessee,  after  his  term  has  expired,  has  taken 
a  new  lease  for  years  of  a  stranger  rendering 
rent,  which  has  been  paid;  for  he  still  remains 
tenant  at  sufferance  as  to  the  first  lessor,  as 
was  held  in  Preston  v.  Love,  Noy,  120;  10 
Vin.  Abr.  416. 

We  have  been  able  to  discover  but  one  point 
of  difference  between  the  case  of  the  disseizor 
and  the  tenant  at  sufferance,  which  is  that  the 
owner  cannot  maintain  an  action  of  trespass 
against  his  tenant  by  sufferance,  until  he  has 
entered  upon  the  premises  (4  Kent,  Comm. 
116);  a  point  to  which  we  shall  have  occasion 
further  to  advert. 

Upon  this  view  the  liability  of  the  defendant 
Fabyan,  to  answer  for  the  loss  by  fire,  which  is 
the  subject  of  this  suit,  is  regulated,  not  by 
the  rule  applicable  to  tenants  under  contract, 
or*  holding  by  right,  but  by  tliat  which  governs 
the  case  of  the  disseizor  and  unqualified  wrong- 
doer. 

By  statute  (6  Anne  c.  31,  made  perpetual  10 
Anne,  c,  14;  1708,  1712)  no  action  or  process 
whatever  shall  be  had,  maintained  or  prosecut- 
ed against  any  person  in  whose  house  or  cham- 
ber any  fire  shall  accidentally  begin.  Co.  Litt. 
67,  note  377;  3  Bl.  Comm.  228,  note;  1  Com. 
Dig.  209.  "Action  for  Negligence,"  A,  6.  It 
is  not  necessary  to  consider  whether  this  statute 
has  been  adopted  here,  though  it  is  strongly 
recommended  by  its  intrinsic  equity,  because 
at  all  events  a  different  rale  applies  in  this 
case. 

The  mere  disseizor  or  trespasser,  who  enters 
without  right  upon  the  land  of  another,  is  re- 
sponsible for  any  damage  which  results  from 
any  of  his  wrongful  acts.  Such  a  disseizor  is 
liable  for  any  damages  occasioned  by  him, 
whether  willful  or  negligent.  He  had  no  right 
to  build  any  fire  upon  the  premises,  and  if  mis- 
fortune resulted  from  it  he  must  bear  the  loss. 
For  this  purpose  the  defendant  Fabyan  stands 
in  the  position  of  a  disseizor. 

2.  Assuming  that  Fabyan  is  liable  for  the  loss 
of  these  buildings  the  question  arises,  whether 
he  is  liable  in  this  form  of  action;    and,  as  we 


134 


ESTATES  IN  REAL  PROPERTY. 


have  remarked,  he  is  not  liable  in  trespass. 
Chancellor  Kent  (4  Comm.  116),  says:  "A  ten- 
ant at  sufferance  is  one  that  comes  into  posses- 
sion of  land  by  lawful  title,  but  holdeth  over 
by  wrong  after  the  determination  of  his  inter- 
est. He  has  only  a  naked  possession,  and  no 
estate  which  he  can  transfer,  or  transmit,  or 
which  is  capable  of  enlargement  by  lease,  for 
he  stands  in  no  privity  to  his  landlord,  nor  is 
he  entitled  to  notice  to  quit;  and,  independent 
of  the  statute,  he  is  not  liable  to  pay  any  rent. 
He  holds  by  the  laches  of  the  landlord,  who 
may  enter  and  put  an  end  to  the  tenancy  when 
he  pleases.  But  before  entry  he  cannot  main- 
tain an  action  of  trespass  against  the  tenant 
by  sufferance."  1  Cruise,  Dig.  tit.  9,  c.  2;  Ris- 
ing V.  Stanard,  17  Mass.  282;  Keay  v.  Good- 
win, 16  Mass.  1,  4;  2  Bl.  Comm.  150;  Co. 
Lift,  57b;  Livingston  v.  Tanner,  12  Barb.  483; 
Trevillian  v.  Andrew,  5  Mod.  384. 

If,  then,  Fabyan  is  answerable  at  all,  he  must 
be  liable  to  the  action  of  trespass  on  the  case. 
There  is  no  evidence  o-f  any  entry,  and  the  de- 
mand of  possession,  whatever  its  other  effects 
may  be,  is  not  an  entry,  nor  do  we  find  it  made 
equivalent  to  an  entry. 

The  case  of  West  v.  Trende,  Cro.  Car.  187, 
Jones,  124,  224,  is  a  decision  that  case  lies  in 
such  a  case. 

"Action  upon  the  case.  Whereas  he  was  and 
yet  is  possessed  of  a  lease  for  divers  years 
adtunc  et  adhuc  ventur,  of  a  house,  and  be- 
ing so  possessed  demised  it  to  the  defend- 
ant for  six  months,  and  after  the  six  months 
expired  the  defendant  being  permitted  by  the 
plaintiff  to  occupy  the  said  house  for  two 
months  longer,  he,  the  defendant,  during  that 
time  pulled  down  the  windows,  &c.  Stone 
moved  in  arrest  of  judgment  that  this  action 
lies  not,  for  it  was  the  plaintiff's  folly  to  permjt 
the  defendant  to  continue  in  possession,  and  to 
be  a  tenant  at  sufferance,  and  not  to  take  course 
for  his  security;  and  if  he  should  have  an  ac- 
tion, it  should  be  an  action  of  trespass,  as  Lit- 
tleton (section  71).  If  tenant  at  will  hath  de- 
stroyed the  house  demised,  or  shop  demised,  an 
action  of  trespass  lies,  and  not  an  action  upon 
the  case.  But  all  the  court  conceived  that  an 
action  of  trespass  or  an  action  upon  the  case 
may  well  be  brought,  at  the  plaintiff's  election, 
and  properly  in  this  case  it  ought  to  be  an  ac- 
tion upon  the  case,  to  recover  as  much  as  he 
may  be  damnified,  because  he  is  subject  to  an 
action  of  waste;  and  therefore  it  is  reason  that 
he  should  have  his  remedy  by  action  upon  the 
case.  Whereupon  rule  was  given  that  judg- 
ment should  be  entered  for  the  plaintiff." 

3.  It  seems  clear  that  if  Fabyan  is  to  be  re- 
garded as  a  wrongdoer  in  retaining  the  posses- 
sion of  the  plaintiff's  property  after  his  lease 
had  expired,  all  who  aided,  assisted,  encouraged 
or  employed  him  to  retain  this  possession,  must 
be  regarded  as  equally  tort-feasors,  and  equal- 
ly responsible  for  any  damage  resulting  from 
his  wrongful  acts.  No  more  direct  act  could 
be  done  to  encourage  a  tenant  in  keeping  pos- 
session, than  that  of  leasing  to  him  the  prop- 
erty, unless  it  was  that  of  giving  him  a  bond 


of  indemnity,  such  as  is  stated  in  this  case.  In 
wrongs  of  this  class  all  are  principals,  and  the 
defendant.  Dyer,  must  be  held  equally  respon- 
sible with  Fabyan;  and  it  seems  clear  that  as 
Dyer  could  justify  in  an  action  of  trespass  un- 
der the  authority  of  Fabyan  so  as,  like  him, 
not  to  be  liable  in  that  action,  he  must  be  liable 
with  him  in  an  action  upon  the  case. 

Whether  the  allegations  of  the  declarations 
are  suitable  to  charge  either  of  the  defendants, 
we  have  not  considered,  as  the  court  have  not 
been  furnished  with  a  copy. 

4.  The  case  of  Russell  v.  Fabyan,  7  Fost.  (N. 
H.)  529,  is  not  to  be  regarded  as  a  decision  of 
the  question  raised  in  this  case,  in  relation  to 
the  sale  of  a  supposed  right  of  redemption  as 
belonging  to  Burnham,  after  the  first  levy  made 
upon  the  property.  It  was  there  held,  upon  the 
facts  appearing  in  that  case,  that  independent 
of  the  question  of  fraud  in  Burnham's  deed  to 
Russell,  all  Burnham's  right  of  redeeming  the 
levy,  which  might  be  made  upon  the  attachment 
subsisting  at  the  time  of  the  deed,  and  of 
course  good  against  it,  passed  to  Russell.  Up- 
on this  point  there  can  be  no  question,  and  none 
is  suggested.  The  question  then  arose,  wheth- 
er, if  Russell's  deed  was  proved  to  be  fraudu- 
lent as  to  the  creditors  of  Burnham,  the  right 
of  redemption  did  not  pass  to  Dyer  by  the  sale 
on  his  second  execution,  so  as  to  invalidate  the 
tender  made  by  Russell.  This  question  might 
have  been  met  and  decided,  but  the  case  did  not 
require  it.  It  was  held  that  whether  Russell's 
title  was  good  or  bad,  Fabyan,  as  his  tenant, 
could  not  dispute  it.  He  could  be  discharged 
from  his  liability  to  pay  his  rent,  which  was 
the  subject  of  that  action,  only  by  an  eviction 
by  the  lessor,  or  by  some  one  who  had  a  par- 
amount title  to  his;  a  mere  outstanding  title 
not  put  in  exercise  is  not  a  defense.  The  de- 
fendant relied  on  an  eviction  on  the  14th  of 
June,  1848,  as  his  defence.  The  sale  of  the 
right  of  redemption  was  made  on  the  31st  of 
July  following,  and  after  that  date  there  was 
no  eviction,  so  that  the  attempt  there  was  mere- 
ly to  show  an  outstanding  but  dormant  title, 
which  it  proved  would  be  no  defence.  And  the 
court  took  the  ground  that  Fabyan  stood  in  no 
position  to  raise  a  question  as  to  the  validity 
of  Russell's  title,  except  so  far  as  the  opposing 
title  was  the  occasion  of  some  disturbance  of 
his  estate.  So  far  as  the  principles  stated  in 
that  case  are  concerned,  they  appear  to  us 
sound  and  unanswerable.  Whether,  if  the  case 
had  taken  a  different  form,  the  result  would 
have  been  in  any  degree  different,  it  is  not  nec- 
essary to  enquire. 

By  our  statute,  every  debtor  whose  land  or 
any  interest  in  land  is  sold  or  set  off  on  execu- 
tion, has  a  right  to  redeem  by  paying  the  ap- 
praised value,  or  sale  price,  with  interest,  with- 
in one  year.  Rev.  St.  c.  195,  §  13;  Id.  c.  196, 
§  5;  Comp.  St  pp.  501,  502.  This  right  to  re- 
deem is  also  subject  to  be  levied  upon  and  sold, 
as  often  as  a  creditor  supposes  he  can  realize 
any  part  of  his  debt  by  a  sale,  until  some  one 
of  the  levies  or  sales  becomes  absolute.  But 
these    sales   have    each    inseparably    connected 


TENANCY  AT  SUFFERANCE. 


135 


with  them  the  right  of  redemption.  If  the 
debtor  has  parted  with  his  title  before  the  levies 
are  made  while  the  property  is  under  an  at- 
tachment, that  right  of  redemption  is  vested  in 
his  grantee,  who,  being  the  party  interested 
(Rev.  St.  c.  196,  §  14),  may  redeem  any  sale  or 
levy,  if  he  pleases;  the  effect  of  his  payment  or 
tender  for  this  purpose  being  of  course  depend- 
ent upon  the  state  of  facts  existing  at  the  time. 

So,  if  there  is  no  attachment  upon  the  prop- 
erty at  the  time  of  the  debtor's  conveyance,  but 
his  creditors  levy  upon  the  property,  upon  the 
ground  that  his  conveyance  was  not  made  in 
good  faith,  and  upon  an  adequate  consideration, 
and  so  is  fraudulent  and  void  as  to  them,  the 
effect  is  the  same.  Any  creditor  may  levy  his 
execution  upon  the  right  of  redemption  of  any 
prior  levy  or  sale,  the  deed  of  the  debtor  being 
without  legal  operation  to  place  either  the  prop- 
erty itself  or  any  interest  in  it  out  of  the  reach 
of  his  process.  And  the  right  of  redemption, 
60  long  as  it  retains  any  value  in  the  judgment 
of  any  creditor  remains  liable  to  his  levy;  but 
when  the  creditors  have  exhausted  their  legal 
remedies,  the  right  of  redemption,  necessarily 
incident  to  every  levy  on  real  estate,  still  re- 
mains, and  it  is  the  right  not  of  the  debtor,  but 
of  his  grantee,  who  may  exercise  it  at  his  pleas- 
ure. 

This  we  conceive  was  the  position  of  the  pres- 
ent case.  The  first  levy  by  Dyer  being  founded 
on  his  attachment,  took  precedence  of  Russell's 
deed;  but  Russell  had  still  the  right  to  redeem 
as  grantee  of  Burnham,  whether  his  deed  was 
valid  as  to  creditors  or  not.  When  the  right  of 
redeeming  the  first  levy  was  sold,  on  the  ground 


that  the  deed  to  Russell  was  fraudulent  and 
invalid  a  right  of  redemption  still  remained  to 
Russell,  and  he  had  a  right,  as  a  party  inter- 
ested in  the  land,  to  pay  or  tender  the  amount 
of  the  first  levy  to  Dyer,  and  so  to  discharge  it. 
By  that  i^ayment  or  tender  it  was  effectually 
discharged,  whatever  might  be  the  rights  or 
duties  of  Dyer,  or  Russell,  or  any  one  else, 
growing  out  of  the  sale  of  the  right  of  redemp- 
tion upon  Dyer's  second  execution,  which,  be- 
ing founded  upon  no  attachment,  was  prima 
facie  a  nullity  as  to  Russell,  and  was  depend- 
ent for  its  effect  upon  the  evidence  that  might 
be  offered,  showing  Russell's  deed  void  as  to 
creditors. 

The  present  case  stands  free  from  any  ques- 
tion growing  out  of  the  relation  of  landlord  and 
tenant,  as  that  relation  is  not  alleged,  and  the 
lease  of  Russell  had  expired,  and  Dyer  had  nev- 
er stood  in  that  relation.  The  evidence  offered 
that  Burnham's  deed  to  Russell  was  fraudulent 
as  to  his  creditors,  is  not  open  to  any  objection 
of  that  kind,  which  was  held  decisive  in  7  Fost. 
(N.  H.)  529.  If  the  facts  warrant  that  defence, 
the  evidence  is  competent;  and  if  it  should  be 
shown  that  the  deed  to  Russell  was  void  as  to 
creditors,  and  Dyer  was  one  of  that  class,  his 
second  levy  was  good,  if  properly  made,  and 
the  title  to  these  premises  passed  to  him,  sub- 
ject to  his  prior  and  any  subsequent  levy,  and 
to  Russell's  right  of  redemption. 

As  the  offer  of  the  defendant  to  prove  Burn- 
ham's  deed  to  Russell  to  be  fraudulent  and 
void  as  to  creditors,  and  as  to  the  defendant. 
Dyer,  as  one  of  them,  was  refused,  there  must 
be  a  new  trial. 


136 


ESTATES  IN  REAL  PROPERTY. 


TRASK  T.  GRAHAM. 
(50  N.  W.  917,  47  Minn.  571.) 
Supreme  Court  of  Minnesota.    Dec.  24,  1891. 
Appeal  from  district  court,  Hennepin  county; 
Seagrave  Smitli,  Judge. 

Action  by  Eugene  W.  Trask  against  John 
Graham  to  recover  on  a  covenant  of  warranty. 
Judgment  for  plaintiff.  Defendant  appeals. 
Reversed. 

L.  L.  Longbrake,  for  appellant.  H.  P.  Her- 
ring, for  respondent. 

VANDERBURGH,  J.  The  record  shows 
that  the  parties  jointly  entered  into  a  lease  with 
the  St.  Anthony  Falls  Water-Power  Company, 
of  the  date  of  May  5,  1885,  whereby  they  rent- 
ed from  the  company,  by  lease  under  seal,  for 
the  term  of  five  years  from  July  1,  1885,  the 
premises  in  controversy.  By  the  terms  thereof 
the  lessees,  Trask  &  Graham,  who  were  part- 
ners, agreed  to  pay  as  rent  for  the  premises  the 
sum  of  $300  per  annum,  in  quarterly  install- 
ments; and  also  agreed  to  assume  and  pay  all 
real-estate  taxes  levied  on  the  leased  premises 
■during  the  term  of  the  lease,  beginning  with  the 
tax  for  1885.  The  lessees  jointly,  as  partners, 
owned  a  saw-mill  situated  upon  the  leased  prem- 
ises. On  the  2d  day  of  February,  1889,  the 
defendant,  Graham,  in  consideration  of  a  con- 
tract for  the  sale  of  his  interest  and  title  in 
and  to  the  leased  premises  and  the  saw-mill 
situated  thereon,  entered  into  between  him  and 
the  plaintiff,  Trask,  did,  by  an  instrument  in 
writing  under  seal,  at  his  request,  duly  sell  and 
convey  all  his  right,  title,  and  interest  in  and 
to  the  same  to  one  Whitmore,  who  represented 
the  plaintiff,  for  the  sum  of  $5,500  considera- 
tion paid  by  the  latter,  and  therein  agreed  to 
warrant  and  defend  the  title  thereto  against  all 
lawful  claims.  For  the  purposes  of  this  action 
it  is  understood  that  the  sale  and  transfer  is  to 
be  treated  as  an  independent  transaction,  and 
wholly  disconnected  from  other  partnership 
business  between  the  parties  or  any  accounting 
therefor;  and  plaintiff,  it  is  admitted,  stands  in 
the  shoes  of  Fairchild,  as  assignee,  and  suc- 
ceeded to  the  sole  possession  of  the  premises  un- 
der the  lease  as  of  the  date  of  the  transfer. 
The  rent  for  the  current  quarter  became  due 
April  1st  next  after  the  date  of  the  assignment; 
and  the  taxes  for  the  year  1888  became  payable 
on  the  first  Monday  of  January,  1889,  but  not 
delinquent  until  June  1st,  but  became  and  were 
a  separate  and  fixed  liability  of  both  lessees 
then  in  possession.  The  plaintiff  subsequently 
paid  the  rent  for  the  whole  quarter,  and  also 
the  taxes  for  1888,  and  by  this  action  he  seeks 
to  recover  from  the  defendant  the  amount  of 
one-half  the  taxes  for  1888,  so  paid  by  him,  and 
also  one-half  of  the  rent  that  had  accrued  be- 
tween January  1st  and  February  2d,  the  date 
of  the  transfer  and  assignment  to  him,  though 
not  due  till  April  1st  following.  As  respects 
the  relations  of  the  assignee  of  a  lease,  the  rule 
is:  "When  a  covenant  relates  to  or  is  to  oper- 
ate upon  a  thing  in  being,  parcel  of  the  demise, 


the  thing  to  be  done  by  force  of  the  covenant 
is,  as  it  were,  annexed  to  the  thing  demised, 
and  goes  with  the  land,  binding  the  assignee  to 
performance,  though  not  named:  and  the  as- 
signee, by  accepting  possession  of  the  land,  sub- 
jects himself  to  all  the  covenants  that  run  with 
the  land."  Tayl.  Landl.  &  Ten.  §  437;  Spen- 
cer's Case,  5  Coke,  16;  Blake  v.  Sanderson,  1 
Gray,  332.  The  foundation  of  this  liability  of 
the  assignee  is  the  privity  of  estate  that  ex- 
ists between  him  and  the  lessor.  The  covenant 
to  pay  the  rent  and  taxes  runs  with  the  land, 
and  the  plaintiff,  Trask,  under  the  assignment, 
assumed  the  liability  for  the  rent  and  taxes  that 
accrued  and  became  due  during  his  possession 
as  assignee.  Van  Rensselaer  v.  Bonesteel,  24 
Barb.  365;  Post  v.  Kearney,  2  N.  Y.  394.  The 
assignee,  being  liable  solely  in  privity  of  estate, 
is  liable  only  for  obligations  maturing  or 
breaches  occurring  while  he  holds  the  estate  as 
assignee,  and  not  for  those  which  occurred  be- 
fore he  became  assignee  or  after  he  ceased  to 
be  such.  Patten  v.  Deshon,  1  Gray,  329.  It 
follows  from  the  application  of  these  princioles 
to  this  case  that  the  assignee,  Trask,  was  him- 
self liable  for  the  rent  for  the  whole  quartei 
within  which  he  became  assignee,  the  rent  not 
having  yet  accrued,  and  which  he  must  be  held 
to  have  assumed.  And  the  quarter's  rent  in 
such  cases  is  not  to  be  apportioned.  Graves  v. 
Porter,  11  Barb.  594,  595.  We  are  unable  to 
see  why  the  same  rule  does  not  apply  as  to  the 
taxes.  The  covenant  to  pay  was  general,  and 
would  be  satisfied  if  paid  within  the  year  and 
so  as  to  save  the  lessor  harmless.  The  lessees 
would  not  be  in  default,  at  least  till  the  taxes 
became  delinquent,  which  would  not  be  till 
June  1st.  There  had  been  no  breach  of  the 
covenant  to  pay  the  taxes,  and  the  assignee 
took  the  leasehold  estate  cum  onere  as  to  them 
also.  The  plaintiff,  as  assignee,  was  liable  di- 
rectly to  the  lessor  upon  the  covenant  to  pay 
the  taxes.  There  had  been  no  previous  breach 
of  the  covenant,  and  the  plaintiff,  as  assignee, 
took  the  place  of  the  lessee  in  respect  to  lia- 
bility upon  covenants  not  yet  matured.  Masou 
V.  Smith,  131  Mass.  510.  It  must  be  presumed 
that  the  contract  was  made  in  contemplation  of 
the  legal  relations  of  the  parties,  and  that  the 
consideration  was  adjusted  accordingly.  If  the 
plaintiff,  as  between  them,  was  not  to  stand  in 
the  place  of  the  defendant,  and  the  defendant 
was  to  remain  liable  for  the  unpaid  rent  and 
taxes  not  yet  due,  it  should  have  been  so  ex- 
pressed in  the  contract.  Granting,  then,  that 
the  lien  of  the  taxes  attached  to  the  land  Janu- 
ary 1st,  the  obligations  to  pay  them  under  the 
lease  had  not  yet  matured,  and  there  is  no 
covenant  against  incumbrances  or  liens  on  the 
land.  Defendant  merely  transfers  his  right, 
title,  and  interest  in  the  mill  and  lease,  and  this 
is  all  the  covenant  of  warranty  applies  to.  He 
does  not  warrant  the  title  to  the  land.  Sweet 
V.  Brown,  12  Mete.  (Mass.)  177.  No  breach  of 
the  covenant  of  warranty  is  shown  or  relied  on. 
Rawle,  Cov.  (4th  Ed.)  178,  note.  Order  re- 
versed. 


ESTOPPEL  TO  DENY  LESSOR'S  TITLE. 


137 


NEWMAN  V.  RUTTER. 

(8  Watts,  51.) 

^Supreme  Court   of  Pennsylvania.      May,   1839. 

Error    to   court    of   common    pleas,   Lebanon 
county. 

Foster    &    Weidman,    for  plaintiff     in     error. 
Pearson  &  Cline,  for  defendant  in  error. 

ROGERS,  J.  One  of  the  objections  to  the 
judgment  of  the  court  of  common  pleas,  is 
their  answer  to  the  fourth  point.  The  court  in- 
structed the  jury,  in  answer  to  that  point,  that 
to  entitle  the  plaintiff  to  enter  agreeably  to  the 
terms  of  the  deed,  it  must  appear  not  only  that 
the  rent  was  in  arrear  and  unpaid,  but  that 
there  was  not  sufficient  personal  property  on 
the  lot,  liable  to  be  distrained,  to  enable  plain- 
tiff effectually  to  compel  payment  of  the  rent  by 
distress.  By  the  terms  of  the  deed  it  is  stip- 
ulated that  if  the  rent  should  be  in  arrear  sixty 
days,  the  grantor  might  distrain;  and  if  a  suf- 
ficient distress  should  not  be  on  the  premises, 
that  the  owner  of  the  rent  might  enter  on  the 
lots  and  repossess  thorn,  as  though  the  deed  had 
not  been  made.  The  deed  must  be  construed 
according  to  the  intention  of  the  parties;  and, 
to  entitle  the  plaintiff  to  enter,  it  must  appear 
not  only  that  the  rent  was  in  arrear  for  the 
time  specified,  but  that  upon  a  distress  being 
made  by  him,  it  was  found  that  there  was  not 
sufficient  property  on  the  premises  to  pay  it. 
In  this  point  of  view,  therefore,  the  defendant 
rather  than  the  plaintiff,  has  reason  to  com- 
plain of  the  charge,  as  the  court  put  the  case 
upon  the  fact,  whether  there  was  enough  of 
property  on  the  premises  to  answer  the  plain- 
tiff's claim.  If  the  plaintiff  had  pursued  his 
remedy  by  distress,  there  were,  if  the  witnesses 
are  to  be  believed,  at  all  times,  goods  more  than 
sufficient  for  that  purpose. 

But  the  plaintiff  contends  that  the  defendant 
denied  his  title,  and  that  this  denial  amounts 
to  a  forfeiture,  and  that,  therefore,  he  can 
maintain  ejectment.  A  forfeiture  may  be  in- 
curred either  by  a  breach  of  those  conditions 
which  are  always  implied  and  understood  to  be 
annexed  to  the  estate,  or  those  which  may  be 
agreed  upon  between  the  parties,  and  expressed 
in  the  lease.  The  lessor,  having  the  jus  dispo- 
oendi,  may  annex  whatever  conditions  he  pleas- 
es, provided  they  be  not  illegal,  unreasonable, 
•or  repugnant  to  the  grant  itself;  and  upon 
breach  of  these  conditions  may  avoid  the  lease. 
Any  act  of  the  lessee,  by  which  he  disaffirms  or 
impugns  the  title  of  his  lessor,  comes  within 
the  first  class;  for,  to  every  lease  the  law  tac- 
itly annexes  a  condition  that  if  the  lessee  do 
anything  which  may  affect  the  interest  of  the 
lessor,  the  lease  shall  be  void,  and  the  lessor 
may  re-enter.  Every  such  act  necessarily  de- 
termines the  relation  of  landlord  and  tenant; 
since  to  claim  under  another,  and  at  the  same 
time  to  controvert  his  title;  to  affect  to  hold 
under  a  lease,  and  at  the  same  time  to  destroy 
the    interest    out    of    which    the    lease    arises, 


would    be    the     most     palpable     inconsistency: 
Barr.  Leases,  119;    Woodf.  Landl.  &  Ten.  219. 
So  where  the  tenant  does  an  act  which  amounts 
to  a  disavowal  of  the  title  of  the  les.sor,  no  no- 
tice to  quit  is  necessary;    as  where  the  tenant 
has  attorned  to  some  other  person,  or  answereil 
an  application  for  rent  by  saying  that  his  con- 
nection as  tenant  with  the  party  applying  has 
ceased;    Bull.  N.   P.  90;    Esp.   X.  P.  463.      In 
such  cases,   as  the  tenant  sets  his  landlord   at 
defiance,  the  landlord  may  consider  him  either 
as  his  tenant,   or  as  a   trespasser.     But   these 
principles  only  apply  where  there  is  no  dispute 
as  to  the  person  entitled  to  the  rent;    so  where 
there  was  a  refusal  to  pay  rent  to  devisee  in  a 
will  which  was  contested,  it  is  not  such  a  dis- 
avowal of  the  title  as  will  enable  the  devisee 
to    treat    the   tenant    as    a   trespasser,    and    to 
maintain    ejectment    without    previous    notice. 
Woodf.  Landl.  &  Ten.  219,  and  the  authorities 
there   cited.     These  principles   are   usually  ap- 
plied   to    the   relation    which    subsists    between 
landlord  and  tenant  on  a  demise  for  a  term  of 
years;    and   whether   they   are   applicable   to   a 
grant  of  land  in  fee  with  the  reservation  of  a 
rent  charged  on  the  land  may  admit  of  doubt, 
although  no  case  has  been  cited,  and  I  know  of 
none,  where  it  has  been  so  applied.    But  how- 
ever this  may   be,  the  doctrine   does   not   hold 
where    there    is    no    denial    of    the    title    under 
which   the   defendant   claims,   but   it   is   denied 
that   the  plaintiff  is  the  person   entitled   to   re- 
ceive the  rent,  although  he  is  the  representative 
or  devisee  of   the   original   grantor,   or   where, 
as    in    this    case,    the   proportion    of    the    rent, 
which  he  owns  is  disputed.     The  plaintiff  claims 
the  entire   rent,   and   the  court  and   jury  have 
decided  that  he  is  entitled  to  a  moiety  only.    It 
would,    therefore,    be    a    harsh    application    of 
the  principle  to  decide  that  a  defence  which  cer- 
tainly   has    some   plausibility   about    it,    should 
work  a  forfeiture  of  the  estate.     Courts  of  law 
always  lean  against  a  forfeiture,  and  it  is  the 
province  of  a  court  of  equity  to  relieve  against 
it.      Whenever   a   landlord   means   to   take   ad- 
vantage of  a  breach  of  covenant,  so  as  that  it 
should  operate  as  a  forfeiture  of  the  lease,  he 
must  take  care  not  to  do  anything  which  may 
be  deemed  an  acknowledgment  of  the  tenancy, 
and  so  operate  as  a  waiver  of  the  forfeiture,  as 
distraining  for  the  rent,  or  bringing  an  action 
for  the  payment  of  it,  after  the  forfeiture  has 
accrued    or    accepting    rent:     Bull.    N.    P.    96; 
Woodf.  Landl.  &  Ten.  227;    Barr.  Leases,  226. 
For  this  reason  the  court  were  right  in  admit- 
ting in  evidence  a  receipt  from  the  plaintiff  to 
the  defendant  for  ground  rent  for  the  two  lots 
for   the    year    1831;    this    eviaence    was    perti- 
nent,   because   the   receipt  of   rent   waives   the 
forfeiture,   if  any  such  there  was,   for  neglect- 
ing to  erect  the  buildings   on  the  lot,   as   pro- 
vided for  in  the  deed. 

In  deducing  title  to  the  ground  rents,  plaintiff 
proved  that  the  ground-rent  in  Newmanstown 
had  been  devised  by  the  last  will  and  testament 
of  Walter  Newman,  to  Henry  Newman  and  Da- 
vid Newman,  as  joint  devisees.  This  of  course, 
vested  in  Henry  Newman,  the  plaintiff,  a  moiety 


138 


ESTATES  IN  REAL  PROPERTY. 


only  of  the  ground -rent  reserved  in  the  deeds.  For 
the  purpose  of  proving  that  he  was  entitled  to  the 
whole  ground-rent  charged  on  the  locus  in  quo, 
he  offered  in  evidence  a  deed  from  Magdalena 
Newman,  administratrix  of  David  Newman, 
deceased,  one  of  the  devisees  of  Walter  New- 
man, to  Christian  Seibert,  dated  the  24th  of 
August,  1786,  for  sixty-three  acres  of  the  tract 
of  one  hundred  and  twenty-eight  acres,  devised 
to  Henry  and  David  Newman,  by  Walter  New- 
man, the  said  sixty-three  acres  including  the 
one-half  of  Newmanstown;  also  a  deed  from 
Christian  Seibert  to  Francis  Seibert,  for  same, 
dated  the  19th  of  April,  1793;  also  the  will  of 
Francis  Seibert,  devising  the  same  sixty-three 
acres,  including  one-half  of  Newmanstown,  to 
Elizabeth,  wife  of  Peter  Shoch,  dated  February 
9,  1811,  with  parol  proof  that  the  said  Francis 
Seibert,  in  the  year  1805,  or  thereabouts,  until 
the  time  of  his  death,  and  those  claiming  under 
him  since  his  death,  held  and  exercised  exclu- 
sive ownership  and  occupation  of  the  said  six- 
ty-three acres,  including  the  one-half  of  New- 
manstown, and  that  Henry  Newman,  the  other 
devisee  of  Walter  Newman,  and  those  claiming 
under  him,  in  the  same  time,  viz.,  from  the 
year  1805,  or  thereabouts,  to  the  present  time, 
have  exercised  exclusive  ownership  on  the  re- 
mainder of  the  tract  of  one  hundred  and  twen- 
ty-eight acres,  including  the  other  half  of  New- 
manstown, and  that  the  two  lots  for  which 
this  ejectment  is  brought,  are  located  in  that 
part  of  the  said  tract  last  mentioned;  with  fur- 
ther parol  proof  that  search  has  been  made  in 
the  recorder's  office  in  Dauphin  and  Lebanon 
counties,  for  deed  or  agreement  of  partition  of 
the  premises  and  none  such  has  been  found. 

From  the  evidence  here  offered,  it  is  plain 
that  the  ground-rent  was  not  divided  between 
the  devisees  by  writ  of  partition;  so  that  the 
only  question  is,  was  such  proof  offered  as  will 
justify  the  jury  in  presuming  a  deed,  grant,  or 


mutual  conveyance?  The  evidence  would  have- 
proved  that  the  plaintiff  had  been  in  the  enjoy- 
ment and  receipt  of  the  entire  rent,  charged  on 
the  premises,  for  a  period  of  thirty  years  and 
upwards,  and  that  they  who  deduce  their  title 
from  David  Newman,  had  received  the  whole 
ground-rent  charged  on  this  portion  of  the  es- 
tate. A  jury  is  required,  or  at  least  may  be 
advised  by  a  court,  to  infer  a  grant  of  an  in- 
corporeal hereditament,  after  an  adverse  en- 
joyment for  the  space  of  twenty-one  years; 
and  in  Hearn  v.  Lessee  of  Witman,  6  Bin.  416, 
it  is  held,  that  what  circumstance  will  justify 
the  presumption  of  a  deed,  is  matter  of  law; 
and  that  it  is  the  duty  of  the  court  to  give  an 
opinion  whether  the  facts  proved  will  justify 
the  presumption.  This  presumption  seems  to 
have  been  adopted  in  analogy  to  the  act  of 
limitations,  which  makes  an  adverse  enjoyment 
of  twenty-one  years  a  bar  to  an  action  of  eject- 
ment; for  as  an  adverse  possession  of  that  dura- 
tion will  give  a  possessory  title  to  the  land  it- 
self, it  seems,  also,  to  be  reasonable,  that  it 
should  afford  a  presumption  of  right  to  a  minor 
interest  arising  out  of  the  land.  The  ground 
of  presumption,  in  such  cases,  is  the  difficulty 
of  accounting  for  the  possession  or  enjoyment, 
without  presuming  a  grant  or  other  lawful  con- 
veyance. This  is  not  an  absolute  presumption, 
but  one  that  may  be  rebutted  by  accounting  for 
the  possession  consistently  with  the  title  ex- 
isting in  another.  Here  we  cannot  account 
for  the  enjoyment  and  receipt  of  the  entire- 
I'ent,  without  presuming  a  grant  or  some  law- 
ful conveyance  from  the  one  tenant  in  com- 
mon to  the  other;  and  for  this  reason  we  think 
the  court  erred  in  excluding  the  evidence. 

The  court  were  right  in  admitting  the  evi- 
dence of  Job  Pearson.  The  objection  goes  to 
his  credit  rather  than  to  his  competency. 

Judgment  reversed,  and  a  venire  de  nova 
awarded. 


TERMINATION. 


139 


BEDFORD  V.  M'ELHERRON. 

(2  Serg.  &  R.  49.) 

Supreme  Court  of  Pennsylvania.     Sept,  1815. 

Wilkins  &  Campbell,  for  plaintiff  in  error. 
Mr.  Baldwin,  for  defendant  in  error. 

TILGHMAN,  C.  J.  Where  a  lease  is  made 
for  a  year,  and  so  from  year  to  year,  as  long 
as  both  parties  please,  there  must  be  notice  to 
quit,  in  due  time,  before  the  end  of  the  year; 
otherwise,  the  law  implies  a  new  lease  for  a 
year.  So,  where  a  lease  is  made  to  one,  to 
hold  during  the  pleasure  of  the  lessor,  there 
must  be  due  notice  to  quit;  because  it  would 
be  unreasonable,  that  a  man  who  has  gone  to 
the  expense  of  cultivating  land  and  making 
preparations  for  a  crop,  while  his  estate  was 
uncertain,  should  be  turned  off  at  a  moment's 
warning.  But  where  the  lease  is  to  expire  at 
a  certain  time,  the  law  is  different,  because 
each  party  knows  what  he  has  to  trust  to;  there 
can  be  no  occasion  to  give  notice  to  quit,  where 


the  lessee  has  agreed  to  quit  at  a  certain  time. 
In  the  present  case,  the  lessor  might  have 
maintained  an  ejectment  at  the  end  of  the 
lease;  but  there  is  no  evidence  that  the  lessor 
required  the  possession  at  the,  end  of  the  lease. 
On  the  contrary,  he  permitted  the  lessee  to 
retain  possession  for  seventeen  years  after- 
wards. From  this,  I  think,  it  may  be  fairly 
presumed,  that  the  defendant  retained  the  pos- 
session with  the  consent  of  the  plaintiff;  and 
if  so,  he  was  tenant  at  will,  at  least,  or  per- 
haps, it  might  be  more  easily  inferred,  that  he 
remained  tenant  from  year  to  year,  at  the  same 
rent  which  was  reserved  by  the  written  lease 
for  four  years.  But  whether  he  was  tenant  at 
will,  or  from  year  to  year,  is  immaterial,  be- 
cause, in  both  cases,  notice  to  quit  was  neces- 
sary. The  charge  of  the  president  of  the  court 
of  common  pleas  was  correct,  therefore,  and 
the  judgment  should  be  affirmed.  Judgment  af- 
firmed. 

BRAOKENRIDGE,  J.,  concurred.    YEATES, 
J.,  absent. 


140 


ESTATES  IN  REAL   PROPERTY. 


HUNTINGTON  v.  PARKIILKST. 

(49  N.  W.  597,  87  Mich.  38.) 

Supreme  Court  of  Michigan.     July  28,  1891. 

Error  to  circuit  court,  Ingliam  county;  Rol- 
lin  H.  Person,  Judge. 

Action  by  Charles  G.  Huntington  against 
Charles  G.  Parkhurst  to  recover  for  the  rent 
of  a  store-house.  There  was  judgment  for 
plaintiff,  and  defendant  thereupon  took  this 
writ.    Affirmed. 

Q.  A.  Smith  (A.  D.  Prosser,  of  counsel),  for 
api>ellant.  A.  B.  Haynes  (Montgomery  &  Lee, 
of  counsel),  for  appellee. 


CHAMPLIN,  C.  J.  This  action  was  com- 
menced before  a  justice  of  the  peace  to  recov- 
er for  the  use  and  occupation  of  certain  prem- 
ises before  then  claimed  to  have  been  leased 
by  the  plaintiff  to  the  defendant.  The  plain- 
tiff had  judgment  before  the  justice,  and  the 
case  was  appealed  to"  the  circuit  court,  and 
there,  after  hearing  the  testimony,  the  court 
directed  a  verdict  for  the  plaintiff.  We  quote, 
with  a  few  amendments,  the  statement  of 
facts  taken  from  the  supplemental  brief  of 
counsel  for  defendant,  namely:  The  plaintiff 
was  the  owner  of  a  store  building,  in  which 
was  contained  a  stock  of  goods  which  had 
been  attached,  and  was  sold  by  the  sheriff 
at  public  auction,  and  purchased  by  the  de- 
fendant. When  the  goods  were  offered  for 
sale,  the  plaintiff  informed  the  auctioneer, 
and  he  so  announced,  that  any  purchaser  of 
the  stock  of  goods  might  obtain  a  lease  of  the 
store.  Immediately  after  the  purchase  by  the 
defendant,  the  plaintiff  and  he  talked  togeth- 
er with  reference  to  leasing  the  store,  and  it 
was  then  agreed  between  them  that  the  plain- 
tiff would  execute  to  defendant  a  written 
lease  of  the  premises  for  a  term  of  one  year, 
with  the  privilege  of  three  or  five  shears  in  ad- 
dition, for  a  yearly  rental  of  $500,  payable 
monthly  in  installments  of  $41. 6G.  The  de- 
fendant agreed  to  accept  and  enter  into  such  a 
lease  on  those  conditions,  and  on  account  of 
the  lateness  of  the  hour  the  plaintiff  said  he 
would  have  the  lease  drawn  after  he  retm'ued 
home,  and  they  could  execute  it  at  some  fu- 
ture time.  Without  any  other  agreement  or 
understanding,  defendant  occupied  the  store 
two  months,  and  paid  the  monthly  rental  of 
$41.G6.  The  defendant,  through  his  father, 
during  this  period  of  time,  requested  the  plain- 
tiff to  execute  the  lease,  who  replied  that  he 
would  do  so,  but  that,  the  defendant  not  being 
present  to  execute  the  lease  with  him,  he 
would  have  it  dx'awn  so  that  when  they  came 
together  it  could  be  signed.  The  term  com- 
menced on  the  6th  day  of  May,  1890,  and  the 
rent  was  paid  to  July  6,  1890.  On  the  3d  day 
of  July  the  defendant  removed  from  the  prem- 
ises. On  the  Sunday  before  he  had  an  inter- 
view with  the  plaintiff,  in  which  he  told  him 
that  he  was  going  to  vacate,  to  which  the 
plaintiff  replied  that  he  had  rented  the  store 
for  a  year.  The  defendant,  after  he  had  remov- 
ed from  the  premises,  locked  the  door,  and  left 


the  key  in  a  bank  with  which  plaintiff  was 
connected,  with  directions  to  deliver  it  to  plain- 
tiff. Plaintiff  refused  to  accept  the  key  or  the 
possession  of  the  premises,  and,  after  the  next 
month's  rent  became  due  and  payable,  brought 
his  action  to  recover  for  the  use  and  occupation 
of  the  premises. 

The  first  question  to  be  decided  is,  what 
was  the  nature  and  extent  of  defendant's 
holding  under  the  facts  above  stated?  The 
question  so  ably  argued  by  defendant's  attor- 
ney in  his  original  and  supplemental  briefs, 
and  orally  before  the  court,  namely,  that  the 
testimony  shows  that  no  actual  lease  was  en- 
tered into,  but  that  there  was  an  agreement 
for  a  lease  for  a  term  of  one  year,  with  the 
privilege  of  three  or  five  years,  at  an  annual 
rental  of  $500,  payable  monthly  at  the  raie 
of  $41.6G,  does  not  reach  and  dispose  of  the 
merits  of  the  controversy.  The  terms  of  the 
lease  were  agreed  upon,  and  it  was  agreed 
they  should  be  reduced  to  writing.  This 
doubtless  was  an  agreement  for  a  lease  to  be 
executed  according  to  the  terms  agreed  upon, 
but  the  testimony  shows  further  that  the  de- 
fendant went  immediately  into  possession  un- 
der the  agreement  that  he  should  have  a  writ- 
ten lease  for  one  year,  with  the  privilege  of 
three  or  five  years,  ag  above  stated,  and  oc- 
cupied the  premises  and  paid  the  stipulated 
rent  for  two  months.  Under  such  facts,  the 
relation  of  landlord  and  tenant  was  created. 
yThe  defendant  became  a  tenant  at  will.  It  is 
laid  down  by  Taylor,  in  his  work  on  Land- 
lord and  Tenant,  that  "where  a  party  enters 
into  the  possession  of  premises  under  an 
agreement  to  accept  a  lease  for  twenty 
months,  and  subsequently  refuses  to  accept 
the  lease,  he  becomes  by  such  refusal  a  strict 
tenant  at  will,  for  he  may  be  ejected  immedi- 
ately; but,  if  the  landlord  accepts  rent  from 
him  monthly  or  according  to  the  terms  of  the 
original  agreement,  a  general  tenancy  at  will 
is  created,  commencing  from  the  time  of  en- 
tity;"  and  "while  a  man  who  enters  imder  a 
void  lease  is  strictly  a  tenant  at  will,  if  he 
pays  rent,  he  becomes  a  general  tenant  at  will 
or  from  year  to  year,  according  to  circumstan- 
ces." Tayl.  Landl.  &  Ten.  §  60.  In  this  case 
the  agreement  for  a  periodical  rent,  and  the 
agreed  term  of  a  year,  at  all  events,  makes 
the  holding  of  defendant  a  tenancy  from  year 
to  year.  See  Id.  §  56,  and  cases  cited  in  note 
2.  Counsel  for  the  defendant  claims  that  an 
entry  under  an  agi-eement  for  a  lease  is  a 
mere  license,  and  can  be  terminated  by  either 
party  before  the  written  lease  is  executed,  and 
cites  Tayl.  Landl.  &  Ten.  §  37.  The  author 
does  make  use  of  the  expression  that  "such 
an  agreement,  however,  will  operate  as  a  li- 
cense to  enter  upon  the  premises  agreed  to  be 
demised;"  but  it  was  not  the  intention,  as  I 
think,  of  the  author,  to  convey  the  idea  that 
a  person  so  agreeing  for  a  lease  might  enter 
and  occupy  the  premises,  and  pay  rent  in  ac- 
cordance with  the  agreement,  without  becom- 
ing a  tenant.  The  distinction  is  this:  if  he 
enters  awaiting  the  execution  of  the  agree- 
ment, his  entry  is  one  under  a  license,  but  if, 


LANDLORD  AND  TENANT. 


141 


after  being  in  possession  of  the  preniisen,  he 
pays  rent  for  the  use  of  them  in  accordance 
with  the  agreement,  which  was  to  be  reduced 
to  writing,  his  relation  is  that  of  a  tenant  at 
will;  and  the  distinction  is  plainlj^  pointed  out 
at  the  close  of  the  section  cited,  where  the  au- 
thor says:  "Any  person,  however,  who  may 
be  in  possession  of  land  in  pursuance  of  an 
agreement  to  let,  may,  by  the  payment  of  rent 
or  other  circumstances,  become  a  tenant  from 
year  to  year."  Indeed,  it  aaouM  seem  not  to 
require  any  citation  of  authorities  to  prove 
that  when  a  partj',  under  an  agreement  for  a 
lease,  enters  in  possession  and  pays  rent  for 
the  use  of  the  premises,  the  relation  between 
the  parties  cannot  be  other  than  that  of  land- 
k)rd  and  tenant;  it  certainly  is  not  that  of  li- 
censor and  licensee.  The  tenant  has  acquired 
rights  of  which  he  cannot  be  divested  without 
the  proper  notice,  and  so  has  the  landlord. 
The  same  result  follows  where  a  lease  is  made 
by  parol  for  a  longer  term  than  one  year,  and 
the  party  enters  into  possession  under  it,  and 
pays  rent,  Avhich  it  is  agreed  shall  be  reduced 
to  writing,  as  it  does  wliere  a  lease  is  made 
for  a  longer  term  than  one  year  by  parol,  and 
is  void  under  the  statute  of  frauds,  and  the 
tenant  enters  and  occupies,  paying  rent,  and  is 
ruled  by  the  same  principles  which  apply  to 
the  latter  class.  In  such  cases  it  has  been  uni- 
formly held  that  an  implied  tenancy  from 
year  to  year  will  arise  in  cases  where  occupa- 
tion is  had  under  a  parol  demise  for  more  than 
a  year,  void  because  exceeding  the  period  al- 
lowed by  the  statute  of  frauds.  Tayl.  Landl. 
&  Ten.  §  56.  Some  cases  hold  that  such  a 
lease,  although  void  for  the  period  beyond  a 
year,  is  good  for  one  year,  because  it  will  be 
presumed  that  the  parties  intended  to  effect 
the  lease  for  the  term  for  which  one  could  le- 
gally be  made;  but  I  think  the  better  reason- 
ing is  that  a  contract  which  is  void  by  the 
terms  of  the  statute  of  frauds  is  not  good  for 
any  purpo.se  further  than  to  indicate  what  the 
intentions  of  the  parties  were  with  reference 
to  the  terms  of  the  letting.  The  rights  of  the 
parties  must  be  judged  by  the  relation  they 
have  assumed  with  each  other  independently 
of  the  void  contract.  Courts,  however,  have 
referred  to  the  contract  as  throwing  light  up- 
on the  intentions  of  the  parties,  and  it  has 
been  generally  held  that,  where  a  tenant  en- 
ters and  occupies  under  a  parol  lease  for  more 
than  a  j^ear,  the  agreement  may  be  looked  to 
as  showing  the  terms  under  which  the  tenan- 
cy subsists  in  all  respects,  except  as  to  the 
duration  of  the  term.  Doe  v.  Bell,  5  Term  R. 
471;  1  Cruise,  Dig.  281-284;  People  v.  Rickert, 
8  Cow.  226;  Schuyler  v.  Leggett,  2  Cow.  6G0; 
Greton  v.  Smith,  33  N.  Y.  24.5;  Clayton  v. 
Blakey,  8  Term  R.  3;  Laughran  v.  Smith, 
75  N.  Y.  205.  In  the  case  last  cited,  which 
was  an  action  to  recover  rent,  Andrews,  J., 
said:  "But  although  a  parol  lease  for  more 
than  a  year  is  void,  yet  it  has  long  been  set- 
tled that,  when  a  tenant  enters  and  occupies, 
the  agreement  regulates  the  terms  on  which 
tlie  tenancy  subsists  in  all  respects  except  as 
to  the  duration  of  the  term.    It  is  a  reasona- 


ble inference  in  such  a  case,  from  the  circum- 
stances, that  the  parties  intended  a  tenancy 
on  the  terms  of  the  original  agi'eement,  ami 
the  law  implies  a  new  contract  between  the 
parties  corresponding  therewith,  so  far  as  it  is 
not  in  conflict  with  the  statute."  In  Koplitz 
V.  Gustavus,  48  Wis.  48,  3  N.  W.  754,  the  ten- 
ant had  gone  into  the  occupation  of  the  prem- 
ises under  a  lease  which  was  void  under  the 
statute  of  frauds.  It  was  contended  by  coun- 
sel for  the  lessees  that,  as  the  lease  was  not 
in  writing  and  was  for  a  longer  period  than  a 
year,  it  was  void;  that  the  rent  reserved  was 
not  annual,  but  monthly,  and  payable  at  the 
end  of  each  month,  on  the  plaintiff's  demand; 
and  tliat  under  these  circumstances  the  ten- 
ancy created  by  holding  over  was  one  from 
month  to  month,  and  determinable  by  30  days' 
notice.  The  court,  in  deciding  the  case,  after 
stating  the  position  of  counsel,  said:  "But  to 
this  it  may  be  answered  that  there  are  well- 
considered  cases  which  decide,  under  the  Eng- 
lish statute  and  statutes  which  contain  similar 
provisions,  that  while  a  parol  lease  for  more 
than  the  prescribed  period  creates,  in  the 
first  instance,  only  an  estate  at  will,  yet  such 
estate,  when  once  created,  may,  like  any  other 
estate  at  will,  be  converted  into  a  tenancy 
from  year  to  year,  by  payment  of  rent  or  oth- 
er circumstances  which  indicate  an  intention 
to  create  such  yearly  tenancy."  In  Morrill  v. 
Mackman.  24  Mich.  279,  the  distinction  be- 
tween a  license  and  a  tenancy  is  clearly  point- 
ed out,  and  it  was  expressly  held  that  a  parol 
lease  for  more  than  a  year,  reserving  an  an- 
nual rent,  under  which  the  lessee  has  been  put 
into  possession,  although  invalid  under  the 
statute  of  frauds,  was  good  as  a  lease  from 
year  to  year,  until  terminated  by  notice.  The 
principle  In  this  case  was  cited  with  approval 
and  a])plied  in  Coan  v.  Mole,  39  Midi.  454. 
Schneider  v.  Lord,  62  Mich.  141,  28  N.  W.  773, 
was  a  ca.se  where  there  was  an  unwritten 
lease  for  two  years  from  the  beginning  of  the 
year  1884.  The  rent  was  paid  monthly  for 
more  than  a  year,  and  the  lessee  claimed  the 
right  to  terminate  the  lea.se  on  a  month's  no- 
tice. The  case  below  was  decided  on  the 
ground  that  the  tenancy  was  at  will  from 
month  to  month,  and  ended  by  a  montli's  no- 
tice to  quit.  It  was,  however,  held  that  it 
was  a  tenancy  from  year  to  year,  and  not  a 
monthly  tenancy  at  will,  and  the  fact  that  the 
rent  was  payable  monthly  did  not  any  the  less 
malve  it  a  contemplated  yearly  holding. 

In  the  case  at  bar  the  contemplation  of  the 
parties  was  that  the  holding  should  be  at  all 
events  for  one  year,  and  with  an  additional 
term,  depending  upon  the  election  of  the  les- 
see, and  as  to  this  he  was  a  tenant  at  will 
from  year  to  year,  and  not  from  month  to 
month.  If,  however,  it  should  be  conceded 
that  the  tenancy  was  at  will  from  month  to 
month,  still  the  judgment  below  was  correct. 
The  principles  of  justice  and  sound  policy  re- 
quire that  estates  at  will  should  not  be  ter- 
minated, except  at  the  will  of  either  party, 
and  then  not  without  notice.  This  principle 
wag  long  since  embodied  in  our  statutes,  and. 


142 


ESTATES   IN   REAL   PROPERTY. 


witli  some  recent  modifications  in  respect  to 
notice,  reads  as  follows:  "Sec.  4304.  All  es- 
tates at  will  or  by  sufferance  may  be  deter- 
mined by  either  party  by  three  months'  notice 
given  to  the  other  party;  and,  when  the  rent 
reserved  in  a  lease  is  payable  at  periods  of 
less  than  three  months,  the  time  of  such  no- 
tice shall  be  sufficient  if  it  be  equal  to  the 
interval  between  the  times  of  payment;  and 
such  notice  shall  not  be  held  void  by  reason 
of  its  mentioning  a  day  for  the  termination 
of  the  tenancy  not  corresponding  to  the  con- 
clusion or  commencement  of  any  such  period, 
but  in  any  such  case  the  notice  shall  be  held 
to  terminate  the  tenancy  at  the  end  of  a 
period  equal  in  time  to  that  in  which  the  rent 
is  made  payable.  And,  in  all  cases  of  neglect 
or  refusal  to  pay  rent  on  a  lease  at  will  or  oth- 
erwise, seven  days'  notice  to  quit,  given  in 
writing  by  the  landlord  to  the  tenant,  shall  be 
sufficient  to  determine  the  lease.  And  in  all 
cases  of  tenancy  from  year  to  year  a  notice 
to  quit,  given  at  any  time,  shall  be  sufficient 
to  terminate  said  lease  at  the  expiration  of 
one  year  from  the  time  of  the  service  of  such 
notice."  Pub.  Laws  1SS5,  Act  No.  1G2.  The 
entry  of  defendant  into  possession  under  the 
terms  of  the  agreement  for  a  lease  before  it 
was  executed,  and  paying  rent  in  accordance 
with  the  agreement,  created  the  relation  of 
general  tenancy  at  will,  and  could  not  be  ter- 
minated by  either  party  without  notice  to  the 
other,  and  the  tenant  cannot,  without  justifia- 
ble cause,  abandon  the  premises,  and  treat  it 
as  a  suiTcnder,  without  his  giving  the  notice 
required  by  the  statute.  Walker  v.  Furbush, 
11  Gush.  366;  Whitney  v.  Gordon,  1  Gush.  26G; 
Thomas  v.  Nelson,  69  N.  Y.  118;  Batchelder 
V.  Batchelder,  2  Allen,  105;  Schuyler  v.  Smith, 
51  N.  Y.  309;  Koplitz  v.  Gustavus,  48  Wis. 
48,  3  N.  W.  751.  The  record  does  not  show 
that  defendant  had  any  justifiable  cause  for 
abandoning  the  premises.  They  were  not  in 
fact  or  law  surrendered.  Vacating  the  prem- 
ises before  the  expiration  of  the  term,  and  of- 
fering the  key,  which  is  refused,  is  not  a  sur- 
render. The  testimony  shows  that  defendant 
paid  rent  to  July  6th,  vacated  the  premises 
July  3d,  and  on  the  Sunday  previous,  namely, 
June  29th,  told  the  plaintiff  he  should  move 
out,  and  plaintiff  insisted  that  the  store  w^as 
rented  for  a  year.  Aside  from  the  question 
whether  notice  given  on  Simday  would  be  val- 
id, it  plainly  appears  that  it  was  entirely  in- 
sufficient to  terminate  the  tenancy,  even  if 
the  holding  w'as  from  month  to  month,  and  it 
follows  as  a  natural  consequence  that  until 
the  tenancy  is  terminated  the  defendant  is 
liable  for  the  use  and  occupation  of  the  prem- 
ises. 

The  position  is  taken  by  counsel  for  the  de- 
fendant that  a  tenant  going  into  possession 
under  a  void  lease  cannot  be  compelled  to  pay 
rent  for  any  longer  period  than  he  actually 
occupies,  and  in  support  of  that  position  the 
case  of  Thomas  v.  Nelson,  69  N.  Y.  118,  is  re- 
lied upon,  and  the  following  syllabus  of  that 
decision  is  cited:  "It  seems  that  a  parol  lease, 
void  under  the  statute  of  frauds  because  for 


a  longer  period  than  one  year,  is  not  valid 
for  that  period.  If  a  tenant  enters  and  occu- 
pies under  it,  he  may  be  compelled  to  pay  for 
the  use  and  occupation,  but  cannot  be  com- 
l>elled  by  virtue  of  the  lease  to  pay  for  a 
longer  period  than  he  actually  occupied." 
The  facts  of  that  case  are  stated  in  the  opin- 
ion. The  plaintiff  alleged  a  lease  for  seven 
years.  On  the  trial  he  proved  a  memorandum 
made  by  himself  in  which  he  stated  that  he 
was  to  give  Mr.  Nelson  a  lease  of  the  building 
271  Broadway  for  seven  years,  the  first  three 
years  at  $1,400  a  year,  and  four  years  at  $1.- 
500  a  year.  It  was  said  that  the  memorandum 
did  not  embody  the  contract  between  the  par- 
ties, and  was  not  intended  to.  It  simply  em- 
braced the  main  features  of  the  lease,  and 
plainly  indicated  that  a  formal  lease  was  sub- 
sequently to  be  executed  embodying  the  agree- 
ment which  the  parties  had  made.  The  plain- 
tiff was  permitted  to  show  a  parol  agreement 
for  a  lease  of  seven  years,  and  the  terms  up- 
on which  the  parties  had  agreed.  The  court 
ruled  upon  the  trial  below  in  his  charge  to 
the  jury  that  such  a  lease,  although  invalid 
for  a  term  of  seven  years,  was  valid  for  a 
term  of  one  year.  Under  these  rulings  there 
was  no  exception,  and  Mr.  Justice  Earl,  in  de- 
livering the  opinion  of  the  court  of  appeals, 
said:  "While  such  a  contract  is  void,  yet  if 
the  tenant  enters  into  and  occupies  he  may  be 
compelled  to  pay  for  the  use  and  occupation 
of  the  premises,  [citing  authorities;]  but  it  is 
difficult  to  perceive  how  such  a  contract,  de- 
clared to  be  void  by  the  statute,  can  be  held 
to  be  valid  for  a  single  hour,  or  upon  what 
principle  a  tenant  entering  under  a  void  lease 
could  be  compelled  by  virtue  of  the  lease  to 
pay  for  a  longer  period  than  he  actually  oc- 
cupied." This  probably  is  the  language  from 
which  the  syllabus  was  composed,  but  a  fur- 
ther reading  of  the  opinion  will  disclose  that 
what  the  court  meant  by  actual  occuijatiou 
was  an  occupation  under  the  tenancy,  and 
until  it  had  been  legally  terminated;  for  in 
the  next  clause  the  court  proceeds  as  fol- 
lows: "In  August  the  defendant  moved  away 
from  the  premises,  and  sent  the  keys  of  the 
house  to  the  plaintiff  in  a  letter,  and  they 
were  not  returned.  He  claimed  upon  the  trial 
that  the  retention  of  the  keys  was  an  accept- 
ance of  the  surrender  of  the  premises.  The 
plaintiff  was  not  bound  to  seek  the  defendant, 
and  tender  the  return  of  the  keys.  The  court 
held  that  the  mere  retention  of  the  keys, 
which  were  sent  to  him  without  his  request 
or  assent,  did  not  amount  to  a  surrender  and 
acceptance,  and  in  this  there  was  no  error." 
So  that  it  plainly  appears  that  a  tenant  at 
will,  until  the  tenancy  is  legally  terminated 
by  notice,  is  bound  to  pay  for  the  use  and 
occupation,  and  that  the  mere  vacating  of  the 
premises  during  the  term,  or  while  the  tenan- 
cy exists,  does  not  exonerate  him  from  the 
payment  for  the  use  and  occupation  of  the 
premises  until  the  relation  of  landlord  and 
tenant  is  legally  terminated.  The  judgment 
must  be  affirmed.  The  other  justices  con- 
curred. 


LAXDLOKD  AXD  TENANT. 


143 


LADD  V.  BKOWN. 

(53  N.  W.  lOiS,  {H  Mich.  136.) 

Supreme  Court  of  Michigan,     Dec.  22,  1892. 

Error  to  circuit  court,  Jackson  county; 
Erastus  Pecli,  Judge. 

Replevin  by  Henry  A.  Ladd  against  David 
Brown.  Judgment  for  defendant.  Plaintiff 
brings  error.     Reversed. 

Thomas  A.  Wilson,  for  appellant.  Blair  & 
Wilson,  for  appellee. 

MONTGOMERY,  J.  The  defendant  leased 
a  farm  in  Norvell  township,  Jackson  county, 
of  one  George  Ladd,  under  an  agreement  to 
pay  5  per  cent,  of  the  valuation  as  annual 
rental.  After  some  years  of  occupancy  by 
defendant,  George  Ladd  died,  in  May,  1887, 
leaving  as  his  heirs  at  law  the  plaintiff  and 
one  Alice  M.  Ladd,  a  minor  child  of  another 
son.  The  defendant  was  appointed  admin- 
istrator of  the  estate  of  George  Ladd,  and 
continued  to  occupy  the  premises  in  1887  and 
1888.  In  rendering  his  account  as  adminis- 
trator, he  accounted  for  the  rental  of  the 
farm,  and  charged  himself  $280.  This  sum 
was  fixed  by  the  probate  judge  after  a  hear- 
ing. In  1890  he  sowed  12 'acres  of  wheat 
and  16  acres  of  rye.  He  left  the  place  be- 
fore April  1,  1891,  and  plaintiff  took  posses- 
sion. Defendant  afterwards  went  on  the 
premises,  and  reaped  the  crop.  Plaintiff 
brings  i-eplevin. 

The  plaintiff's  testimony  tended  to  show 
that  when  the  defendant  took  possession  it 
was  agreed  on  his  part  with  George  Ladd 
that  the  defendant  would  at  the  end  of  his 
term  leave  on  the  ground  the  same  quantity 
of  wheat  as  was  then  growing,— about  25 
acres.  Defendant  testified  that  in  the  fall  of 
1888,  before  he  put  in  the  wheat  in  question, 
*T  told  him  I  would  not  think  of  putting  in 
any  wheat  unless  I  had  the  right  to  come 
back  and  harvest  it  after  I  left  the  place,— 
if  I  could  have  that  privfiege  to  come  back 
and  hai-vest  it.  I  told  him  if  we  were  going 
to  have  any  trouble  I  would  not  think  of  put- 
ting in  the  wheat.  He  said  he  did  not  think 
there  would  be  any  trouble,  and  that  ho 
owned  one  half  of  the  place,  and  would  prob- 
ably own  the  rest  before  the  wheat  was  har- 
vested, and  there  would  be  no  trouble.  This 
was  in  front  of  plaintiff's  house.  He  asked 
me  if  I  had  plowed  any,  and  I  told  him  no,  I 
didn't  know  as  I  should,  and  that  brought 
up  the  question  about  sowing  the  wheat. 
That  talk  was,  I  think,  along  in  the  fore  part 
of  August.  I  plowed  after  that.  He  knew 
I  was  plowing  and  sowing  the  ground."  The 
circvut  judge  charged  that,  "If  the  defendant. 
Brown,  in  substance  said  to  Mr.  Ladd,  the 
plaintiff,  'I  will  not  put  in  the  crops  unless 
I  can  harvest  and  take  them  off,'  and  Mr. 
Ladd,    in    reply,   said,    in   substance.     There 


will  be  no  trouble  about  that;  I  own  one 
half,  and  expect  to  purchase  the  other  half;' 
and  if  you  further  find  that  when  Mr.  Ladd 
made  that  statement  he  expected  Mr.  Brown 
to  rely  upon  it  and  act  upon  it  in  putting  in 
the  crops;  and  if  you  also  find  that  Mr. 
Brown  did  so  rely  upon  it  and  act  upon  it, 
and  would  not  have  put  in  the  crops  except 
for  such  statement  by  Mr.  Ladd,— now,  in 
that  condition  of  facts,  Mr.  Ladd  cannot  in- 
sist upon  having  the  crops,  and  your  verdict 
should  be  for  the  defendant.  If,  on  the  oth- 
er hand,  the  evidence  does  not  establish  such 
a  condition  of  facts,  Mr.  Ladd,  the  plaintiff, 
is  entitled  to  your  verdict." 

We  think  there  was  error  in  ignoring  the 
testimony  offered  by  the  plaintiff  tending  to 
show  that  the  defendant  was  legally  bound 
to  do  what  he  claims  to  have  done  under  the 
plaintiff's  assurances.  To  so  apply  the  doc- 
trine of  estoppel  as  to  render  an  agreement, 
otherANise  void  for  want  of  consideratiun, 
valid  and  binding,  is  to  accomplish  by  indi- 
rection what  cannot  be  done  directly.  The 
doctrine  of  estoppel  is  applied  to  prevent  in- 
justice, not  to  relieve  parties  from  the  obli- 
gations of  their  contracts;  and  the  conduct 
of  the  party  claimed  to  have  been  estopped 
must  have  been  such  as  to  have  misled  the 
party  setting  up  the  estoppel  into  a  course  to 
his  prejudice,  or  inducing  him  to  do  what  he 
otherwise  would  not  have  done.  Burdick  v. 
Michael,  32  Mich.  246.  In  this  case,  if  the 
defendant  was  induced  to  do  no  more  than 
he  had,  before  the  alleged  promises  of  plain- 
tiff, undertaken  upon  sufficient  consideration 
to  do,  it  cannot  be  said  that  he  was  misled 
to  his  prejudice,  and  induced  to  do  what  he 
otherwise  would  not  have  done,  unless  it  was; 
to  his  prejudice  to  fulfill  his  contract,  which 
is  of  course  not  true.  3  Am.  &  Eng.  Euc. 
Law,  p.  8.34,  and  cases  cited  in  note  4. 

It  is  claimed  by  the  appellant  that,  as  the 
growing  wheat  was  an  interest  in  real  estate, 
an  estoppel  could  not  be  created  by  parol. 
We  do  not  consider  that  the  case  presents 
this  question.  It  was  competent  for  the 
plaintiff  to  assent  to  an  occupancy  of  land 
for  a  period  of  less  than  one  year  by  parol, 
and  this  is  the  effect  of  the  agreement,  as 
testified  to  by  defendant;  and,  if  such  agi-ee- 
ment  had  been  made  iqwn  sufficient  consid- 
eration, we  do  not  doubt  that  it  could  be  en- 
forced. In  this  case,  if  the  testimony  offered 
by  the  plaintiff  tending  to  show  that  there 
was  an  agreement  on  the  part  of  defendant  to 
leave  crops  upon  the  ground  corresponding  to 
those  which  were  growing  at  the  time  he 
took  possession  is  true,  there  was  no  con- 
sideration for  the  engagement  alleged  to  have 
been  made  by  the  plaintiff,  and  the  jury 
should  have  been  so  instructed. 

Judgment  mil  be  reversed,  with  costs,  and 
a  new  trial  ordered.  The  other  justices  con- 
curred. 


144 


ESTATES   IX   REAL   PKOPEKTY. 


WIXEMAX  V.  THILLIPS  et  al. 

(53  N.  W.  168,  93  Mich.  223.) 

Supreme  Coart  of  Michigan.     Oct.  4,  1892. 

Appeal  from  circuit  court,  Jaclison  coun- 
ty, in  ctiancery;    Erastus  Peck,  Judge. 

Bill  in  equity  by  Henry  Wiueman  against 
Mary  Ann  Phillips  and  Richard  G.  Phillips. 
From  a  decree  for  defendants,  complainant 
appeals.     Reversed. 

Griflin,  Warner  &  Hunt,  for  appellant. 
A.  E.  Hewett  (Eugene  Priugle,  of  counsel),  for 
appellees. 

McGRATH,  J.    On  the  4th  day  of  January, 
1S8G.    defendants    leased    from    complainant 
the    Madison    House,    at    Detroit,    for    five 
years  and  three  months,  at  an  annual  rental 
of  $2,400  for  the  first  three  years,  and  $2,- 
700   for   the   rest   of  the   term,   payable    in 
monthly    installments   in    advance.    Defend- 
ants at  the  same  time. purchased  from  com- 
plainant the  hotel  furniture  for  $l.(;oO,  pay- 
ing $300  down,  and  agreeing  to  pay  .'iUOO  per 
month  after  July   1,    1888,    until   the  whole 
was  paid.     The  lease  provided  that  defend- 
ants would  pay  all  water  taxes  and  assess- 
ments;   keep  the  plate  glass  as  well  as  the 
hotel  effects  and  furniture  insured  for  com- 
plainant's use  and  benefit;    and,   to  secure 
the     performance     of     the     conditions     and 
agreements  of  the  lease  on  their  part,   de- 
fendants should  execute  a  chattel  mortgage 
upon   the   effects   and   furniture   purchased, 
and    a    real-estate    mortgage    upon    certain 
real  estate  owned  by  defendant  Mary  Ann 
Phillips,    in    Jackson.     The    lease    provided 
that  it  should  not  be  assigned  without  com- 
plainant's consent.     The  agreement  provid- 
ed that,  when  the  furniture  should  be  fully 
paid  for,  the  real-estate  mortgage  should  be 
discharged.     The    lease    was    executed    and 
acknowledged   by   complainant  and   the   de- 
fendants on  the   day   of   its  date,   and   de- 
fendants went  immediately   into  possession 
under   it.     The   mortgages   provided   for   in 
the  lease  were  afterwards,  on  January  18, 
1886,    executed   and    delivered.     The   condi- 
tion   of    the    real-estate    mortgage   was    the 
payment  of  the  balance  due  upon  the  furni- 
ture, and  that  of  the  chattel  mortgage  was 
the   performance    of    the    condition    of    the 
lease.     Defendants    occupied    the    premises 
until  November  15,  1887,  at  which  time  they 
were  in  arrears  for  I'ent,  and  had  made  no 
further  payments   upon   the   furniture.     On 
that  date  defendants,   by  a  written  instru- 
ment, assigned  to  Murray  Dalziel  the  lease 
aforesaid,   and   defendants'    interest   in   the 
hotel  furniture,  subject  to  all  the  terms  and 
conditions  of  the  said  lease,  and  subject  to 
all  liens  and  incumbrances  existing  thereon. 
Murray  agreed  to  pay  to  defendants  $1,000, 
of  which  ^500  was  to   be   paid   down,    and 
$500    in  two   years.     Murray   assumed    and 
agreed    to    pay    "all    such    i*ent    upon    said 
premises  as  may  be  now  in  arrears,  and  all 


li:i])ilities  against  the  said  'Madison  House,' 
so  called,  created  and  existing  on  hotel  ac- 
count, and  accruing  within  the  period  of  one 
year  last  past;  and  the  said  second  party 
hereto  does  hereby  further  assume  and 
agree  to  carry  out  and  perform  all  the  condi- 
tions of  said  lease  entered  into  on  said  4th 
day  of  January,  1886,  between  said  second 
and  third  parties,  hereto,  and  to  pay  the 
rent  as  therein  provided,  subject,  however, 
to  such  modifications  as  may  be  made  in 
respect  thereto  by  said  second  and  third 
parties,  and  all  liabilities  existing  on  ac- 
count of  the  sale  of  the  furniture  as  in  said 
lease  provided,  in  accordance  with  the 
terms  and  conditions  of  said  lease,  and  in 
all  respects  relieve  the  said  Richard  G. 
Phillips  and  Mary  Ann  Phillips  from  their 
obligations  in  respect  thereto."  The  said  as- 
signment was  executed  by  defendants,  Dal- 
ziel, and  complainant,  and  contained  the 
following  clause:  "And  the  said  Henry 
Wineman,  party  of  the  third  part  hereto, 
does  hereby  consent  to  the  assignment  and 
transfer  of  said  lease  by  said  Phillips  and 
wife  to  him,  (said  Dalziel,)  as  above  provid- 
ed." On  the  same  date  complainant  en- 
tered into  a  written  agreement  with  Dal- 
ziel, reducing  the  rent  to  $150  per  month. 
Dalziel  occupied  till  July  1,  1888.  at  which 
time  he  left  the  city  and  went  io  Jackson. 
It  is  not  claimed  that  he,  at  that  time,  sur- 
rendered the  house  to  complainant,  and  that 
complainant  leased  to  one  Walsh;  but  the 
answer  sets  up  that  Dalziel,  at  that  time, 
made  some  kind  of  a  transfer  of  the  said 
hotel  property,  including  the  said  furniture 
and  fixtures,  to  one  Walsh,  who  took  pos- 
session and  occupied  the  same  for  one 
month  and  more.  On  or  about  the  1st  of 
August,  1888,  Dalziel  came  back  to  Detroil, 
and  again  took  charge  of  the  house,  at  a 
reduced  rent  of  $30  per  week.  Dalziel  re- 
mained until  the  last  of  December,  1888, 
and  then  surrendered  possession  to  com- 
plainant, who  foreclosed  the  chattel  mort- 
gage, and  at  the  foreclosure  sale  bid  in  the 
hotel  effects  and  furniture  for  $1,000,  cred- 
ited that  amount  upon  arrearages  for  rent, 
and  filed  his  bill  to  foreclose  the  mortgage 
upon  the  Jackson  property  for  the  amount 
unpaid  upon  the  furniture. 

The  defendants  insist  (1)  that,  by  agree- 
ment between  the  parties,  they  were  to  be 
released  fi-om  liability,  and  Dalziel  was  to 
be  substituted  at  the  time  of  the  assign- 
ment to  Dalziel;  and  (2)  that  when  Dal- 
ziel, August  1,  1888,  took  possession,  it  was 
expressly  agreed  that  the  then  existing  in- 
debtedness should  be  canceled,  and  the  de- 
fendants released  from  liability,  and  that  at 
that  time  Dalziel  made  a  new  contract  for 
the  purchase  of  the  furniture,  at  and  for 
the  price  of  $1,000.  The  answer  does  not 
set  up  any  agreement  to  release  defendants, 
entered  into  at  the  time  of  the  transfer  to 
Dalziel,  but  sots  up  that,  on  July  1st,  Dalziel 
made   a   transfer   of  the   hotel   property   to 


LANDLORD  AND  TENANT. 


145 


Walsh;  that  ^^'alsh  took  possession  and  paid 
tlie  July  rent;  that  afterwards  complainant 
and  Dalziel  arranged  that  the  old  lease 
should  be  canceled;  the  hotel  property 
should  be  surrendered  to  and  become  the 
property  of  complainant;  that,  in  considera- 
tion thereof,  complainant  should  cancel  the 
old  indebtedness;  that  complainant  should 
oust  Walsh,  and  complainant  sliould  make 
a  new  lease  to  Dalziel;  that  said  arrange- 
ment was  carried  out;  that  Dalziel  continu- 
ed in  possession  under  said  lease,  as  tenant 
of  both  hotel  and  furniture,  until  Decem- 
ber following,  when  he  surrendered  the 
property  to  complainant,  who  has  since  sold 
it,  and  leased  the  premises  as  his  own;  that 
in  making  said  settlement  and  arrangement 
of  August  1,  18S9,  defendant  Mary  Ann 
Phillips  "assumed,  in  the  absence  of  her 
husband,  to  act  and  agree  for  them  both, 
and  that  what  she  did  in  the  making  of  said 
settlement  was  assented  to  by  her  said  hus- 
band, only  with  and  upon  the  express  un- 
derstanding that  the  said  settlement  includ- 
ed the  cancellation  of  the  said  indebtedness 
of  $1,350  and  the  interest,  as  well  as  of 
the  demands  growing  out  of  the  said  lease, 
and  not  otherwise." 

The  first  claim  is  entirely  inconsistent 
with  this  answer.  Dalziel  was  the  son-in- 
law  of  defendants,  and,  although  not  his 
answer,  it  was  made  after  full  consulta- 
tion with  him.  Mrs.  Phillips  testified  that 
she  was  present  when  the  arrangement  of 
August  1,  1889,  was  entered  into  between 
Wineman  and  Dalziel,  and  with  reference 
to  it  she  says:  "We  were  talking  about 
the  Walshes,  and  Mr.  Wineman  said  that 
the  Walshes  Avould  never  suit  his  house;  he 
didn't  like  their  character.  And  I  told  him, 
'No,  I  didn't  think  they  would  suit  myself;' 
and  he  told  Mr.  Dalziel  he  would  very  much 
like  him  to  take  the  house  back  again.  Dal- 
ziel said  he  would,  provided  that  I  would 
turn  over  all  the  furniture,  and  provided 
he  would  release  Phillips  of  all  the  indebt- 
edness and  incumbrance;  then,  if  he  Avould 
do  that,  he  would  give  Wineman  $1,000, 
and  $25  a  week  rent.  Mr.  Wineman  said  he 
would  not  take  the  $25  a  week  rent,  but  he 
would  $30,  and  Mr,  Dalziel  said  that  he 
did  not  believe  he  could  give  him  $30,  but 
it  appears  they  consented  to  it  afterwards." 
Dalziel  says:  "Mrs.  Phillips  said  she  want- 
ed that  part  distinctly  understood,  that  she, 
the  Phillipses,  were  released  of  all  obligations; 
that  was  the  point  that  was  thoroughly  un- 
derstood." If  on  November  15,  1887,  de- 
fendants were  to  be  released,  why  any  fur- 
ther agreement  on  August  1,  1888?  Com- 
plainant denies  any  agreement  to  release 
defendants  at  any  time,  and  all  of  the  testi- 
mony of  defendants  and  Dalziel,  respect- 
ing any  agreement  to  release,  relates  to  con- 
versations prior  to  the  execution  of  the  trip- 
artite agreement,  dated  November  15.  1887. 
Two  papers  were  executed  at  that  time,— 
the  tripartite  agreement  or  assignment  to 
GATES,R.P.— 10 


Dalziel,  and  the  agreement  between  com- 
plainant and  Dalziel,  respecting  the  reduc- 
tion of  the  rent.  Neither  of  these  papers— 
and  one  of  them  contained  the  agreement 
that,  as  between  defendants  and  Dalziel, 
the  latter  should  pay  these  arrearages- 
refers  to  any  release  of  the  defendants.  It 
must  be  held  that  whatever  agreements 
were  made  by  these  parties  were  merged, 
and  are  set  forth  in  this  tripartite  agree- 
ment. 

Respecting  the  alleged  new  agreement  of 
August  1st  the  $1,000  which  Dalziel  and 
Mrs.  Phillips  claim  was  to  be  paid  to  Wine- 
man is  not  mentioned  in  the  answer.  It  is 
claimed  that,  by  this  agreement,  the  orig- 
inal agreement  or  lease,  the  chattel  mort- 
gage, the  real-estate  mortgage,  the  tripartite 
agreement,  and  the  subsequent  agreement 
with  Dalziel  were  all  canceled  and  wiped 
out,  and  the  defendants  were  to  be  released 
from  a  valid  claim  against  them  for  $2,009; 
yet  there  is  not  a  single  stroke  of  a  pen  to 
indicate  such  an  agreement  or  such  a  pur- 
pose. Dalziel,  according  to  his  stoiy,  was 
to  pay  $1,000  to  Wineman.  He  does  not 
pretend  to  say  when  it  was  to  be  paid.  If 
no  time  was  fixed,  it  was  to  be  a  cash  pay- 
ment; yet  it  was  not  paid,  and  Dalziel  oc- 
cupied the  hotel  for  five  months  thereafter, 
and  he  does  not  pretend  to  say  that  the 
matter  of  its  payment  or  of  its  nonpayment 
was  ever  once  alluded  to.  Can  it  be  urged 
that  Wineman  released  a  secured  claim  of 
over  $2,000,  sold,  turned  over,  and  delivered 
to  Dalziel  this  entire  furniture  for  Dalziel's 
unsecured  promise  to  pay  $1,000,  without 
note  or  memorandum,  and  that  for  five 
months  the  question  of  the  payment  was 
never  alluded  to?  Wineman  does  not  ap- 
pear to  have  done  business  in  that  way. 
The  record  shows  that  he  was  methodical, 
and,  when  he  made  an  agreement,  he  usual- 
ly put  that  agreement  into  writing. 

It  is  claimed,  however,  that  after  August 
1,  1888,  some  weekly  receipts  were  given  by 
Wineman,  which  read,  "In  full  for  rent  to 
date,"  and  one  of  the  receipts  was  produced. 
Wineman  was  a  man  then  70  years  old. 
This  receipt  was  drawn  by  Dalziel.  Wine- 
man's  explanation  is  entirely  satisfactoiy. 
Dalziel  had,  on  a  few  occasions,  handed  over 
the  counter  the  week's  rent,  with  a  receipt 
already  prepared,  and  this  occurred  three  or 
four  times.  Wineman  did  not  read  the  first 
two  or  three  of  these  receipts,  but,  on  glan- 
cing over  the  last  before  signing,  he  noticed 
the  language,  "In  full  for  rent  to  date."  He 
immediately  remonstrated,  and  asked  to  see 
the  other  receipts,  which  Dalziel  laid  out 
on  the  counter  or  table.  AVineman  picked 
out  three  that  had  been  drawn  by  Dalziel, 
insisting  that  Dalziel  knew  that  was  not 
right,  and  offering  other  receipts  for  them. 
Dalziel  took  one  of  the  three,  saying  that 
he  wanted  to  retain  one  of  them  for  a  copy. 
Wineman  took  the  other  two  without  objec- 
tion  or   remonstrance  from   Dalziel.     When 


146 


ESTATES  IN  REAL   PROPERTY. 


asked  if  he  did  not  say  that  he  wanted  to 
keep  one  for  a  copy,  Dalziel  says:  "I  don't 
know  that  1  used  those  exact  words.  I 
know  I  told  him  that  I  intended  to  keep  that 
one."  Thus  we  find  Wineman  at  this  early 
day  (September,  188S)  insisting  that  there 
were  arrearages,  whereas,  if  Dalziel's  claim 
is  correct,  there  were  no  arrearages;  yet  he 
does  not  remonstrate  with  complainant.  It 
was  not  claimed  that  the  receipts  which 
Wineman  had  prepared  were  so  written,  or 
that  he  had  read  and  understood  those 
which  Dalziel  had  prepared.  Wineman's 
conduct  is  evei'ywhere  consistent  with  his 
theory.  Dalziel  abandoned  the  premises 
December  31,  1888,  and  on  January  4,  1889, 
notices  were  posted  of  the  foreclosure  sale 
of  the  furniture  under  the  chattel  mortgage. 
It  is  bid  in  by  complainant,  and  sold  again 
for  the  same  amount. 

The  bill  herein  sets  forth  that,  prior  to 
the  giving  of  the  mortgage  to  complainant, 
Mary  Ann  Phillips  ■  had  given  a  mortgage 
upon  this  Jackson  property  to  another  party ; 
that  in  September,  1888,  intending  to  cut  off 
complainant's  rights,  she  procured  the  said 
mortgage  to  be  foreclosed,  and  the  property 
sold  under  the  statute;  that  on  the  day  of 
the  sale  she  gave  to  her  son,  George  L. 
Phillips,  the  amount  due  on  said  mortgage, 
and  instructed  him  to  bid  in  the  property 
in  his  own  name,  but  in  her  interest,  which 
he  did;  that  afterwards,  in  April,  1889,  said 
George  L.  Phillips  conveyed  said  property 
to  his  wife,  Mary  Phillips,  for  a  nominal 
consideration;  that  said  Mary  Phillips  was 
not  a  bona  flde  purchaser  of  said  property. 
The  bill  makes  George  L.  Phillips  and  Mary 
Phillips  parties  defendant,  and  prays  that 
the  said  property  may  be  decreed  to  be  that 
of  Mary  Ann  Phillips,  and  subjected  to  sale 
as  such.  The  answer  admits  the  allegations 
of  the  bill,  in  that  regard,  except  that  it  is 
alleged  "thjj^t  the  sole  and  only  reason  why 
she  expected  to  better  her  title  to  her  lands 
by  means  of  a  foreclosure  sale  had  refer- 
ence to  claims  under  tax  titles  which  she 
supposed  were  made  against  her,  and  not 
in  any  way  for  the  purpose  or  with  a  v'ew 
to  the  defeating  oi  the  rights  of  the  said 
complainant  under  his  mortgage;  and  she 
further  says  that  she  took  such  action  as 
is  mentioned  in  the  said  bill  without  legal 
advice,  and  with  no  other  purpose  than  to 
have  the  said  lands  conveyed  to  herself  by 


the  said  George  L.  Phillips,  after  the  time 
for  the  redemption  thereof  should  have  ex- 
pired." This  explanation  is  an  unsatisfac- 
tory one.  This  proceeding  is  inconsistent 
with  the  theory  that  on  August  1st,  preced- 
ing, this  property  had  been  released  from 
complainant's  claim  against  it.  The  proofs, 
therefore,  fail  to  show  a  release  or  discharge 
of  the  mortgage  in  question. 

It  is  insisted,  however,  that  the  mortgage 
is  invalid,  for  the  reason  that  the  original 
agreement     contemplated      a     partnership, 
which   could   not   lawfully   exist;     that   the 
property  purchased  for  partnership  uses  be- 
longed to  the  husband.     The  agreement  en- 
tered into  between  complainant  and  defend- 
ants was  not  a  partnership  agreement.     It 
was   for   a   lease   of   certain   premises,   and 
the  puix-hase  of  certain  personal   property. 
The  consideration  that  passed  was  certain 
personal  property,  and  a  lease  of  certain  real 
i  property.     On  the  execution  of  the  papers, 
I  and  delivery  of  possession,  defendants  be- 
i  came  joint  owners  of  the  personal  property. 
I  and    joint    owners    of    the    leasehold.     The 
lease  and  purchase  did  not  necessarily   in- 
volve a  partnership  between  defendants.    A 
I  consideration     then     present     and     existing 
j  passed  to  her  as  virtuallj-  as  though  a  deed 
I  of  the  premises,  instead  of  a  lesser  estate, 
j  had    been    executed    and    delivered.     This 
j  mortgage  was   given   to  secure  the   unpaid 
purchase   money   for  property,   the   title   to 
which  vested  in  herself  and  husband  joint- 
ly.    A  married  woman  may  become  a  joint 
debtor  with  her  husband,  and  upon  a.  proper 
considei'ation.     Post  v.  Shafer,  63  Mich.  85. 
29  N.  W.  519.     Dalziel  is  not  a  necessary  or 
an   indispensable  party   defendant.     An    in- 
quiry as  to  the  equity  existing  between  Dal- 
ziel and  defendants  was  not  important.    The 
assignment  of  the  lease  to  Dalziel  did  not 
operate   to   discharge   defendants;     no    new 
leasing  was   made;    no   understanding   that 
defendants  should  be  released;   no  acts  done 
from  which  an  intention  to  release  could  be 
inferred.     Stewart  v.  Sprague,  71  Mich.  50- 
57,  38  N.  W.  673;    Bailey  v.   Wells,  8  Wis. 
141.     The  decree  of  the  court  below  is  re- 
versed, and  a  decree  entered  here  for  com- 
plainant in  accordance  with   the  prayer  of 
the  bill,  with  costs  of  both  courts. 

MORSE,  C.  J.,  did  not  sit.     The  other  jus- 
tices concurred. 


ESTATES  OX  CONDITION. 


147 


WARNER  V.  BENNETT  eL  al. 

(31  Conn.  4G8.) 

Supreme  Court  of  Errors  of  Connecticut. 
April,  1863. 

E.  W.  Seymour,  for  plaintiff  in  error.  Mr. 
Graves  (with  whom  was  Hollister),  for  defend- 
ant in  error. 

SANFORD,  J.  In  our  opinion  the  convey- 
ance from  Tomlinson  to  Bennett  and  others 
was  of  a  fee  simple  estate  upon  condition  ex- 
pressed in  the  deed.  The  instrument  is  a  com- 
mon deed  of  bargain  and  sale  to  the  grantees, 
their  heirs,  and  assigns  forever,  for  certain 
uses  specified  in  the  deed,  which  contains  the 
following  clause:  "The  conditions  of  the  with- 
in deed  are  such  that  whenever  the  within 
named  premises  shall  be  converted  to  any  oth- 
er use  than  those  named  within,  and  the  with- 
in grantees  shall  knowingly  persist  in  the  use 
thereof  for  any  purpose  whatever  except  such 
as  are  described  in  said  within  deed,  the  said 
grantees  forfeit  the  right  herein  conveyed  to 
the  within  described  premises,  upon  the  gran- 
tor paying  to  the  said  Hatch  and  Bennett  and 
other  stockholders  the  appraised  value  of  such 
buildings  as  may  be  thereon  standing." 

Blackstone  says,  estates  upon  condition  "are 
such  whose  existence  depends  upon  the  hap- 
pening or  not  happening  of  some  uncertain 
event  whereby  the  estate  may  be  originally  cre- 
ated or  enlarged,  or  finally  defeated."  2  Bl. 
Comm.  151.  Littleton  says,  "It  is  called  an 
estate  upon  condition  because  that  the  estate 
of  the  feoffee  is  defeasible  if  the  condition  be 
not  performed."  Co.  Litt.  §  325.  "A  condi- 
tion is  created  by  inserting  the  very  word  'con- 
dition' or  'on  condition'  in  the  agreement."  1 
Bouv.  Inst.  285.  Conditions  are  precedent  or 
subsequent.  "Precedent  are  such  as  must  hap- 
pen or  be  performed  before  the  estate  can  vest 
■or  be  enlarged.  Subsequent  are  such  by  the 
failure  or  non-performance  of  vrhich  an  estate 
already  vested  may  be  defeated."  2  Bl.  Comm. 
154.  In  the  case  of  a  condition  "the  estate  or 
thing  is  given  absolutely  without  limitation, 
but  the  title  is  subject  to  be  divested  by  the 
happening  or  not  happening  of  an  uncertain 
event.  Where,  on  the  contrary,  the  thing  or 
estate  is  granted  or  given  until  an  event  shall 
have  arrived,  and  not  generally  with  a  liability 
to  be  defeated  by  the  happening  of  the  event, 
the  estate  is  said  to  be  given  or  granted  sub- 
ject to  a  limitation."  2  Bouv.  Inst.  275;  2 
Bl.  Comm.  155. 

In  the  case  before  us  the  estate  vested  in  the 
grantees  upon  the  delivery  of  the  deed,  to  have 
and  to  hold  to  them,  their  heirs  and  assigns, 
not  until  they  should  convert  the  property  to 
other  uses  than  those  specified  in  the  deed,  nor 
so  long  as  they  should  continue  to  use  it  for 
the  purposes  specified,  but  forever;  with  a  pro- 
viso or  condition  expressed  in  the  deed,  that  if 
they  should  convert  the  property  to  other  uses 
they  should  forfeit  their  estate.  The  words 
employed  are  most  appropriate  and  apt  to  make 
-an  express  condition  in  deed.    They  are  "the 


conditions  of  the  within  deed  are  such,"  etc. 
And  in  Portington's  Case,  10  Coke,  41a,  it  is 
said  that  "express  words  of  condition  shall  not 
be  taken  for  a  limitation."  It  has  indeed  been 
held  that  they  may  be  so  taken  where  the  es- 
tate is  limited  over  to  a  third  person  upon  the 
breach  or  non-performance  of  the  condition 
(Fry's  Case,  1  Inst.  202)  but  there  is  no  such 
limitation  over  in  the  case  before  us.  So  when 
it  is  said  that  "whenever  the  within  named 
premises  shall  be  converted  to  any  other  use.'' 
etc.,  "the  grantees  forfeit  the  right  herein  con- 
veyed," it  is  clearly  indicated  that  the  estate 
thus  forfeited  by  the  misappropriation  is  to  be 
cut  off  before  the  time  originally  contemplated 
for  its  termination  by  the  parties. 

But  it  is  said  that  by  the  terms  of  the  in- 
strument the  forfeiture  depends  not  merely  up- 
on the  misappropriation  of  the  property  by  the 
grantees,  but  also  upon  the  grantor's  payment 
of  the  appraised  value  of  the  building.     Sup- 
pose it  is  so,  how  can  that  affect  the  question 
whether  this  is  a  condition  indeed  or  a  limita- 
tion?    No   matter   how   many   events   the   for- 
feiture depends  upon,  nor  how  many  individu- 
als must  act  in  producing  them,  when  all  those 
events  concur  and  co-exist  the  forfeiture  is  ef- 
fected as  completely  as  if  it  depended  upon  the 
occurrence  of  a  single  event,  and  the  action  or 
omission  of  a  single  individual.     But  the  pay- 
ment for  the  building  was  not  an  event  upon 
which  the  forfeiture  depended.     It  was  merely 
a  duty  imposed  upon  the  grantor  by  the  con- 
tract in   addition   to   that   which   the   law   im- 
posed, to  enable  him  to  take  advantage  of  the 
breach  of  condition  and  enforce  the  forfeiture. 
His  legal  obligation  to  enter  for  breach  of  the 
condition  was  in  no  wise  affected  by  it.     The 
estate  conveyed  by  the  deed  was  not  an  ease- 
ment,   or   any    other   right   or   interest   in    the 
property  less  than  a  fee  simple.     The  fact  that 
the  instrument  was  signed  by  both  of  the  par- 
ties to  it  is  of  no  importance.     They  were  nei-  • 
ther  more  nor  less  bound   by   the  stipulations 
and  conditions  contained  therein  by  reason  of 
such   signature.     Tne  instrument   contains   no 
contract  on  the  part  of  the  grantor  to  pay  for 
the  building.     The  provision  upon  that  subject 
operates  as  a  qualification  of  the  grantor's  right 
to  enforce  the  forfeiture  and  regain  his  prop- 
erty, but  operates  in  no  other  way.     But  for 
that  provision  the   estate   granted   could   have 
been  put  an  end  to,  and  revested  in  the  gran- 
tor, by  an  entry  only;    under  that  provision  an 
entry   could    be   made   available  only   by   pay- 
ment for  the  building  also. 

We  think  it  clear  that  the  estate  of  the  gran- 
tees was  an  estate  on  condition  in  deed,  and 
that  it  was  an  estate  upon  condition  subse- 
quent; and  hence,  notwithstanding  a  breach 
of  the  condition  by  reason  of  which  the  estate 
might  have  been  defeated,  it  must  continue  to 
exist  in  the  grantees,  with  all  its  original  qual- 
ities and  incidents,  until  the  grantor  or  his  heirs 
by  an  entry  (or  its  equivalent,  a  continual 
claim),  have  manifested  in  the  way  required 
by  law,  their  determination  to  take  advantage 
of  the  breach  of  condition,  to  avail  themselves 


148 


ESTATES   IN   REAL   PROPERTY. 


of  their  legal  rights,  and  to  reclaim  the  estate 
thus  forfeited. 

The  law  upon  this  point  is  thus  laid  down  by 
Professor  Washburn,  in  the  first  volume  of  his 
treatise  on  Real  Property  (page  450),  with  ac- 
curacy and  precision.  "A  condition,  however, 
defeats  the  estate  to  which  it  is  annexed  only 
at  the  election  of  him  who  has  a  right  to  en- 
force it.  Notwithstanding  its  breach,  the  es- 
tate, if  a  freehold,  can  only  be  defeated  by  an 
entry  made,  and  until  that  is  done  it  loses  none 
of  its  original  qualities  or  incidents."  See, 
also,  Id.  452;  2  Bl.  Comm.  155;  2  Cruise,  Dig. 
42. 

But  there  is  in  this  bill  no  allegation  that  an 
entry  for  condition  broken  was  ever  made.  No 
right  to  maintain  this  suit  is  disclosed,  no  title 
to  the  property  is  set  up,  nothing  is  claimed  but 
a  right  of  entry  for  condition  broken.  And 
for  this  reason,  if  for  no  other,  the  bill  is  in- 
suflBcient,  and  the  decree  must  be  pronounced 
erroneous. 

The  allegation  in  relation  to  an  abandonment 
of  the  property  is  immaterial.  It  is  not  averred 
that  the  grantees  had  abandoned  the  property, 
but  only  that  they  had  abandoned  it  "so  far 
as  the  uses  named  in  said  deed  are  concerned;" 
that  is,  that  they  had  ceased  to  use  the  prop- 
erty for  the  purposes  for  which  the  grant  was 
made,  not  that  they  had  ceased  to  use  it  al- 
together. What  effect  an  absolute  and  entire 
abandonment  of  the  property  by  the  grantees 
would  have  had  upon  the  legal  or  equitable 
rights  of  this  petitioner,  we  are  not  now  called 
upon  to  decide. 

Secondly.  A  right  of  entry  for  condition  bro- 
ken is  not  assignable  at  common  law,  and  we 
have  no  statute  which  makes  it  so.  2  Cruise, 
Dig.  4;  4  Cruise,  Dig.  113;  1  Spence,  Eq.  Jur. 
153;  1  Swift,  Dig.  93.  The  grantor  or  his 
heirs  only  can  enter  for  breach  of  such  condi- 
tion. 1  Washb.  Real  Prop.  451;  2  Cruise, 
Dig.  44.  The  petitioner  therefore  could  have 
obtained  no  right  or  title  to  make  an  entry  for 
breach  of  the  condition,  and  without  such  en- 


try the  estate  of  the  grantees  could  not  be  ter- 
minated, and  no  suit  at  laAv  or  in  equity  could 
be  maintained  against  the  occupant  of  the  prop- 
erty. 

Thirdly.  If  there  was  a  breach  of  the  con- 
dition and  a  forfeiture  of  the  grantees'  estate 
in  consequence,  and  if  a  right  of  entry  could 
be  and  was  in  fact  assigned  to  the  petitioner, 
still  the  petitioner  could  not  obtain  the  relief 
for  which  he  seeks  in  a  court  of  equity,  be- 
cause that  court  never  lends  its  aid  to  enforce 
a  forfeiture.  4  Kent,  Comm.  130-  2  Story, 
Eq.  Jur.  §  1319;  Livingston  v.  Tompkins,  4 
Johns.  Ch.  415. 

Lastly.  If  the  right,  title  or  interest,  what- 
ever it  w^as,  of  the  grantor  or  his  heirs  was  as- 
signable, and  was  assigned  to  and  vested  in  the 
petitioner,  as  he  claims,  he  had  no  occasion  to 
come  into  a  court  of  equity  for  relief.  We  do 
not  see  why  he  might  not  have  entered  for 
breach  of  the  conditions,  requested  the  re- 
spondent to  unite  with  him  in  procuring  an  ap- 
praisal of  the  building,  if  he  refused,  procured 
such  appraisal  without  the  respondent's  co- 
operation, tendered  the  amount  of  the  apprais- 
al, and  brought  his  action  of  ejectment.  The 
petitioner's  legal  right,  if  he  had  it,  to  put  at 
an  end  to  the  grantees'  estate  and  obtain  pos- 
session of  the  property,  we  think  could  have 
been  defeated  by  the  respondent's  refusal  to 
co-operate  in  the  appraisal  or  accept  the  ten- 
der. See  1  Swift,  Dig.  295;  Powell,  Cont. 
417;  Whitney  v.  Brooklyn,  2  Conn.  406.  We 
know  of  no  power  in  a  court  of  equity  to  com- 
pel the  respondent  to  join  the  petitioner  in  pro- 
curing an  appraisal,  nor  to  make  one,  in  such 
a  case  as  this;  and  we  see  no  occasion  for  the 
exercise  of  such  a  power  if  it  exists.  We  think 
the  petitioner  has  an  ad«»quate  remedy  for  the 
enforcement  and  protection  of  all  his  rights  at 
law. 

There  is  manifest  error  in  this  record. 

In  this  opinion  the  other  judges  concurred, 
except  DUTTON,  J.,  who,  having  tried  the 
case  in  the  court  below,  did  not  sit. 


ESTATES  ON  LIMITATION. 


149 


HENDERSON  et  al.  v.  HUNTER  et  al.i 

(59  Pa.  St.  335.) 

Supreme  Court  of  Pennsylvania.     Jan.  4,  18G9. 

J.  Barton,  for  plaintiffs  in  error.  White  & 
Slagle,  for  defendants  in  error. 

AGNEW,  J.  This  was  an  action  of  trespass 
by  church  trustees  under  a  deed  of  trust  made 
by  Thomas  Pillow  in  1S3U,  for  taking  down  and 
removing  the  materials  of  a  church  building  in 
1867. 

The  case  turns  on  the  limitation  in  the  deed. 
The  legal  estate  of  the  trustees  clearly  has  no 
duration  beyond  the  use  it  was  intended  to  pro- 
tect. The  word  "successors"  is  used  to  per- 
I>etuate  the  estate,  but  as  the  trustees  are  an 
unincorporated  body  having  no  legal  succes- 
sion, there  is  nothing  in  the  terms  of  the  grant 
to  carry  the  trust  beyond  its  appropriate  use. 
This  brings  us  to  the  limitation  of  the  use  itself. 

It  is  for  the  erection  of  "a  house  or  place  of 
worship  for  the  use  of  the  members  of  the  Meth- 
odist Episcopal  Church  of  the  United  States 
of  America  (so  long  as  they  use  it  for  that  pur- 
pose, and  no  longer,  and  then  to  return  back  to 
the  original  owner),  according  to  the  rules  and 
discipline  which,  from  time  to  time,  may  be 
agreed  upon  and  adopted  by  the  ministers  and 
preachers  of  the  said  church  at  their  general 
conference  in  the  United  States  of  America." 
This  is  the  main  purpose  of  the  trust,  the  other 
portions  of  the  deed  relating  to  the  use  being 
ancillary  only  to  this  principal  object.  The  in- 
terjected words,  "so  long  as  tliey  use  it  for 
that  purpose  and  no  longer,  and  then  to  return 
back  to  the  original  owner,"  are  terms  of  un- 
doubted limitation,  and  not  of  condition.  They 
accompany  the  creation  of  the  estate,  qualify 
it,  and  prescribe  the  bounds  beyond  which  it 
shall  not  endure. 

The  equitable  estate  is  in  the  members  of  the 
church  so  long  as  they  use  the  bouse  as  a  place 
of  worship  in  the  manner  prescribed,  and  no 
longer.  This  is  the  boundary  set  to  their  inter- 
est, and  when  this  limit  is  transcended  the  es- 
tate expires  by  its  own  limitation,  and  returns 
to  its  author.  The  words  thus  used  have  not 
the  slightest  cast  of  a  mere  condition.  No  es- 
tate for   any  fixed   or  determinate   period  had 

ilrrelevant  parts  omitted. 


been  granted  before  these  expressions  were 
reached,  and  they  were  followed  by  no  proviso 
or  other  indication  of  a  condition  to  be  an- 
nexed. 

"A  special  limitation,"  says  Mr.  Smith,  in  bis 
work  on  Executory  Interests  (page  12),  "is  a 
qualiiication  serving  to  mark  out  the  bounds  of 
an  estate,  so  as  to  determine  it  ipso  facto  in  a 
given  event  without  action,  entry  or  claim,  be- 
fore it  would,  or  might,  otherwise  expire  by 
force  of,  or  according  to,  the  general  limita  ■ 
tion."  A  special  limitation  may  be  created  by 
the  words  "until,"  "so  long,"  "whilst"  and  "dur- 
ing," as  when  land  is  granted  to  one  so  long  as 
he  is  parson  of  Dale,  or  while  he  continues  un- 
married, or  until  out  of  the  rents  he  shall  have 
made  £500.  2  Bl.  Comm.  155;  Smith,  Ex.  Int. 
12,  2  Coke,  12P-121;  Fearne,  Rem.  12,  13, 
note,  p.  10.  "In  such  case,"  says  Blackstone, 
"the  estate  determines  as  soon  as  the  contin- 
gency happens  (when  he  ceases  to  be  parson, 
marries  a  wife  or  has  received  the  £500),  and 
the  subsequent  estate  which  depends  on  such 
determination  becomes  immediately  vested, 
without  any  act  to  be  done  by  him  who  is  next 
in  expectancy." 

The  effect  of  the  limitation  in  this  case  was 
that  the  estate  of  the  trustees  terminated  the 
moment  the  house  ceased  to  be  used  as  a  place 
of  worship  according  to  the  rules  and  discipline 
of  the  church,  by  the  members  to  whose  use  in 
that  manner  it  had  been  granted;  and  the  re- 
version ipso  facto  returned  to  Thomas  Pillow, 
the  grantor.  The  abandonment  of  the  house  as 
a  place  of  worship,  therefore,  became  a  chief 
question  in  the  cause,  because  the  title  of  the 
trustees  to  the  property,  and  consequently  their 
right  to  maintain  this  action,  hinged  upon  this 
event.  Then,  as  the  use  of  the  members  of 
this  church  was  to  be  according  to  the  rules 
and  discipline  from  time  to  time  adopted  by 
the  general  conference,  it  became  a  question 
whether  the  alleged  abandonment  of  the  house 
as  a  place  of  worship  was  by  church  authority, 
and  according  to  the  rules  and  discipline  then 
existing;  for  a  mere  temporary  suspension  of 
services  there,  or  a  discontinuance  of  the  use 
without  authority,  would  not  ipso  facto  deter- 
mine the  use.  Hence  an  inquiry  both  into  the 
fact  of  abandonment  and  the  authority  of  the 
church  became  essential. 

Judgment  affirmed. 


150 


ESTATES  IN   REAL   PROPERTY. 


HELM  V.  BOYD. 

(16  N.  E.  85,  124  111.  370.) 

Supreme  Court  of  Illinois.    March  27,  1SS8. 

Appeal  from  circuit  court,  Wabash  county; 
C.  C.  Boggs,  Judge. 

This  is  a  bill  in  chancery  filed  in  the  circuit 
court  of  Wabash  county  by  the  appellee,  Helen 
G.  Boyd,  against  the  appellant,  James  M. 
Helm,  who  is  her  brother.  Appellee,  whose 
maiden  name  was  Helen  G.  Helm,  inherited 
from  her  mother,  who  died  in  July  or  August, 
1874,  one-seventh  of  a  tract  of  742.41  acres  in 
Wabash  county,  and  one-seventh  of  a  part  of 
block  18,  in  the  town  of  Grayville,  in  White 
county.  By  a  quitclaim  deed  dated  and  ac- 
knowledged January  10,  1882,  and  recorded  on 
June  9,  1884,  in  White  county,  and  on  January 
21,  1885,  in  Wabash  county,  appellee  and  her 
husband,  James  S.  Boyd,  conveyed  the  said 
one-seventh  interest  in  said  property  to  John  J. 
Helm,  appellee's  father,  for  an  expressed  con- 
sideration of  $1,000.-  By  a  quitclaim  deed 
dated  and  acknowledged  January  17,  1885,  and 
recorded  January  21,  1885,  John  J.  Helm  and 
his  wife,  Annie  V.  Helm,  (the  latter  being  ap- 
pellee's step-mother,)  conveyed  said  interest  for 
:in  expressed  consideration  of  $1,000  to  the  ap- 
jjellant,  .Jolin  J.  Helm's  son,  reserving  to  John 
J.  Helm  the  use  and  benefit  of  said  premises 
during  his  life.  Appellee  alleges  in  her  bill  that 
her  one-seventh  of  said  property  was  worth  $3,- 
000  on  January  10,  1882;  that  on  that  day  her 
father  loaned  her  $1,000,  without  interest,  and 
that  she  and  her  husband  made  the  quitclaim 
to  him  to  secure  such  loan;  that  the  deed  was 
not  intended  by  her  and  her  father  to  be  aa 
absolute  one,  but  that  it  was  expressly  agreetl 
between  them  that  he  should  hold  the  deed  and 
the  land  as  security  for  the  loan,  and  should 
r-econvey  the  land  to  her  upon  repayment  of 
the  $1,000;  that  when  her  father  deeded  her 
interest  to  defendant,  her  brother,  the  latter 
had  due  notice  and  full  knowledge  of  her  rights, 
and  of  the  terms  on  which  her  father  held  the 
property;  that  it  was  expressly  agreed  between 
her  father  and  the  defendant  that  she  should 
have  the  right  to  redeem  upon  paying  defendant 
$1,000,  with  legal  interest;  that  defendant, 
since  the  death  of  John  J.  Helm,  their  father, 
in  March,  1880,  has  collected  $300  of  rents;  that 
on  December  2,  1886,  she  tendered  to  defendant 
$1,000,  with  legal  interest,  and  offered  to  pay 
him  what  was  due  to  him,  but  he  refused  to 
accept  the  money  or  reconvey  the  premises. 
The  bill  prays  for  an  account,  and  that,  upon 
the  payment  to  defendant  of  the  amount  due 
him,  he  may  be  required  to  reconvey,  and  de- 
liver possession  of  the  premises  to  the  complain- 
ant. The  answer  admits  the  original  owner- 
ship by  complainant,  and  the  execution  of  the 
quitclaim  deeds,  but  denies  that  the  deed  to 
John  J.  Helm  was  made  to  secure  a  loan,  and 
claims  that  it  was  made  to  carry  out  a  sale  of 
the  property,  and  that  John  J.  Helm  paid  com- 
plainant $1,000  as  purchase  money.  The  an- 
swer also  denies  that  when  the  defendant  took 
the  deed  from  his  father  he  had  any  notice  of 


complainant's  alleged  interest  in  the  premises, 
and  claims  that  he  bought  the  property  in  good 
faith,  and  paid  $1,000  for  it,  and  that  $1,000 
was  its  full  value;  and  furthermore  denies  that 
defendant  agreed  to  allow  complainant  to  re- 
deem, or  that  he  collected  $300  of  rents.  The 
a.nswer  claims  the  benefit  of  the  statute  of 
frauds.  Replication  was  filed  to  the  answer, 
and  the  cause  was  heard  upon  bill,  answer, 
replication,  and  proofs  taken  and  filed.  The 
circuit  court  found  the  allegations  of  the  bill  to 
be  true,  and  decreed  that  appellee  should  pay  to 
appellant,  within  60  days,  $992.40,  with  6  per 
cent,  interest  from  May  26,  1887,  till  paid,  and 
that  thereupon  appellant  should  convey  all  his 
right,  title,  and  interest  in  the  premises  to  ap- 
pellee, and  upon  his  failure  to  make  such  con- 
veyaxice  within  20  days  after  such  payment,  it 
was  ordered  that  the  master  make  the  deed,  etc. 

Bell  &  Green  and  Thomas  G.  Parker,  for  ap- 
pellant.   J.  R.  Williams,  for  appellee. 

MAGRUDER,  J.  (after  stating  the  facts). 
The  first  question  is  whether  the  deed  from  ap- 
pellee and  her  husband  to  her  father,  John  J. 
Helm,  was  an  absolute  conveyance  or  a  mere 
mortgage  security.  The  statute  says:  "Every 
deed  conveying  real  estate,  which  shall  appear 
to  have  been  intended  only  as  a  security  in  the 
nature  of  a  mortgage,  though  it  be  an  absolute 
conveyance  in  terms,  shall  be  considered  as  a 
mortgage."  Starr  &  G.  Ann.  St.  p.  1636,  c.  ^, 
entitled  "Mortgages,"  §  12.  A  deed  absolute 
on  its  face  may  be  shown  by  parol  to  be  a  mort- 
gage. The  law  will,  however,  presume,  in  the 
absence  of  proof  to  the  contrary,  that  such  a 
deed  is  what  it  puri>orts  to  be, — an  a.bsolute  con- 
veyance. The  party  who  claims  an  absolute 
deed  to  be  a  mortgage  must  sustain  his  claim 
by  proof  sufficient  to  overcome  this  presumption 
of  the  law.  Before  a  deed  absolute  in  form  will 
be  held  to  be  a  mortgage,  the  evidence  must  be 
clear,  satisfaetory,  and  convincing.  It  must  be 
made  to  appear  clearly  that  such  a  conveyance 
was  intended  to  be  a  mortgage  at  the  time  of 
its  execution.  The  question  is  one  of  intention, 
to  be  ascertained  from  all  the  circumstances. 
Sharp  V.  Smitherma.n,  85  111.  153;  Bartling  v. 
Brasnhn,  102  111.  441;  Bentley  v.  O'Bryan,  111 
111.  53;  Workman  v.  Greening,  115  111.  477,  4 
N.  E.  385. 

An  examination  of  the  testimony  is  necessary 
in  order  to  see  what  the  real  intention  of  the 
parties  was.  It  is  not  clear  from  the  evidence 
whether  appellee's  mother  died  before  or  after 
July  1,  1874.  But  it  is  admitted  by  counsel  on 
both  sides  that  John  J.  Helm  had  a  life-interest 
as  tenant  by  the  curtesy  in  the  one-seventh  part 
of  the  premises  in  question,  which  appellee  in- 
herited from  her  deceased  mother.  When  she 
deeded  her  one-seventh  interest  to  her  father, 
on  January  10,  1SS2,  she  was  only  20  years  old, 
and  had  been  man-ied  only  about  six  months. 
Appellee  swears  that  her  father  proposed  to  her 
to  advance  $l,00Oto  her  husband,  James  S.  Boyd, 
to  start  him  in  business;  that  her  father  said  he 
did  not  want  the  land,  and  that  the  payment 


WHAT  IS  A  MORTGAGE. 


151 


of  the  $1,000  was  merely  an  advancement  made 
to  help  her  and  her  husband,  and  that  it  would 
all  come  back  to  her;  that  he  told  her  the  land 
had  been  left  to  her  by  her  mother,  and  should 
all  come  back  to  her  and  her  children;  that  she 
never  asked  her  father  for  money  when  he  pro- 
posed to  advance  money  on  the  land;  that  she 
never  offered  to  sell  the  land  to  him,  and  he  nev- 
er offered  to  buy  it;  that  when  she  signed  the 
deed  he  said  to  her:  "You  and  Jim  are  young 
yet,  and  I  merely  do  this  to  have  a  little  juris- 
diction over  it.  As  for  the  deed  being  recorded, 
there  shall  never  be  a  scratch  of  the  pen  against 
your  property.  As  far  as  the  $1,000  is  concerned 
I  will  make  that  right  with  the  other  children;" 
that  in  July,  ISS'5,  when  she  learned  that  her 
father  had  recorded  the  deed  from  her,  and  had 
made  a  deed  of  the  land  to  her  brother,  the  ap- 
pellant, she  asked  him  about  it,  and  he  replied: 
"I  transferred  to  Jimmy  Helm  under  the  same 
conditions  that  I  got  it  from  you,  and  he  is  to 
let  you  have  it  back.  I  did  it  to  keep  Annie 
[the  second  wife]  and  her  children  from  getting 
a  foothold;  *  *  »  your  brother  will  do  what 
is  right;"  that  when  she  made  the  deed  to  her 
father,  she  did  not  know  how  much  land  she 
owned  or  was  conveying,  or  anything  about  its 
value;  that  an  hour  after  she  made  the  deed, 
her  father  paid  $500,  and  the  balance  in  small 
amounts  from  time  to  time;  that  there  was  no 
agreement  between  her  and  her  father  about 
paying  him  the  $1,000,"  etc. 

James  S.  Boyd  swears  that  in  November  and 
December,  1881,  and  again  about  January  1, 
1882,  John  J.  Helm  proposed  to  advance  money 
to  him  to  go  into  business  by  buying  an  interest 
in  a  printing-ofhee,  and  said  he  would  take  a 
quitclaim  deed  on  Helm's  portion  of  the  prop- 
erty, and  let  them  have  $1,000,  part  of  which 
he  would  pay  next  morning;  that  "he  requested 
me  to  explain  the  matter  to  my  wife;  he  said 
for  me  to  have  no  fears,  for  the  amount  would 
all  come  back  to  us  children,  and  he  would 
make  it  satisfactory  with  the  other  children;" 
that  John  J.  Helm  "said  he  took  the  deed  to 
have  a  little  jurisdiction  over  us  and  the  amount 
he  advanced  us,  as  we  were  both  young,  and 
that  the  deed  should  never  be  recorded;"  that 
he  talked  with  his  wife,  and  told  her  to  do 
what  she  thought  best,  and  she  said  she  was 
satisfied  her  father  would  "stick  to  what  he 
says;"  that  the  next  morning  he  told  Mr.  Helm 
his  wife  "was  willing  to  get  or  borrow  the 
money;"  that  neither  he  nor  his  wife  knew  the 
amount  or  value  the  deed  called  for;  that  he 
never  offered  to  sell  his  wife's  land  to  her  fa- 
ther, nor  asked  him  to  furnish  money  to  go  into 
business  with;  that  when  the  deed  was  made 
Mr.  Helm  said:  "I  merely  advanced  this  much 
money  on  the  place;  *  *  *  eventually  this 
will  all  come  back  to  her;  I  will  see  that  it  is 
made  up  to  the  other  heirs;"  that  his  wife's 
father  never  stated  that  he  expected  the  $1,000 
to  be  paid  back  to  him,  and  never  asked  for  it. 

Annie  V.  Helm,  widow  of  John  J.  Helm,  and 
step-mother  of  appellee,  swears  that  her  hus- 
band told  her,  before  Mrs.  Boyd  made  the  deed 
to  him,  tliat  he  wanted  to  get  the  deed  to  keep 


them  from  disposing  of  the  land  to  Mr.  Gray 
(the  brother  of  Helm's  first  wife;)  that  after 
her  husband  received  the  deed,  he  said  he  in- 
tended to  give  it  back  to  appellee,  and  merely 
wanted  to  get  it  in  such  a  way  that  she  could 
not  dispose  of  it;  that  he  never  had  the  deed 
recorded  on  that  accoimt;  that  appellant  wrote 
to  his  father,  advising  the  latter  to  get  a  deed 
from  Helen  to  prevent  the  land  going  into 
Gray's  hands,  and  that  such  letter  was  sent  to 
Mrs.  Malcom  Eastwood,  (appellant's  sister,)  to 
prevent  it  from  falling  into  the  wrong  hands; 
that  on  the  evening  before  she  and  her  husband 
conveyed  the  premises  to  appellant,  her  husband 
said  to  her:  "He  [appellant]  wants  me  to  make 
that  property  over  to  him,  and  I  don't  want  to 
do  it;"  that  she  (witness)  did  not  want  to  sign 
the  deetl  to  James,  and  reminded  her  husband 
of  his  promise  to  give  the  land  back  to  Helen, 
and  he  said  that  "JLmmie  would  make  it  all 
right  with  her." 

Jane  Keltou  swears:  "A  short  time  before 
John  J.  Helm  made  the  deed  to  James  M.  Holm 
for  said  lands  I  heard  said  John  J.  say  Jimmie 
would  hold  the  property  for  Ella  the  same  as 
he  had,  and  Mrs.  Helm  objected  to  doing  it." 

George  W.  Cline,  the  attoraey  who  drew  the 
deed  made  by  appellee  to  her  father,  swears 
that  before  the  dee<i  was  executed  John  J.  Helm 
told  him  that  he  wanted  the  deed  so  that  he 
could  control  the  proi>erty,  and  keep  Boyd  from 
disposing  of  it  "if  he  got  to  drinking;"  and  that 
he  was  afraid  Gray  might  get  hold  of  it;  that 
Helm  also  told  him  that  the  property  would  go 
to  Ella  at  his  death,  and  that  "he  did  not  want 
it  to  get  mixed  up  with  his  other  property." 

The  testimony  of  Cathaxine  A.  Wintermute 
confirms  the  evidence  of  api>ellee  and  Annie  V. 
Helm  in  several  particulars. 

There  is  considerable  amount  of  testimony  in 
the  record  as  to  the  value  of  the  land.  After 
a  careful  examination  of  it,  we  are  satisfied 
that  appellee's  one-seventh  interest  in  the  prop- 
erty, notwithstanding  the  fact  that  it  was  an 
undivided  interest,  and  subject  to  her  father's 
life-estate,  was  worth  very  much  more  than 
$1,000  when  she  made  the  deed  to  her  father, 
and  when  the  latter  made  his  deed  to  appellajit. 

Api>ellant  testified  as  follows:  "About  the 
first  of  1885  said  John  J.  Helm  told  me  he  had 
bought  Mrs.  Boyd's  share  of  her  mother's  es- 
tate; that  he  had  advised  her  not  to  sell  it, 
and  told  her  that  at  his  death  the  property 
would  be  worth  more  than  she  could  then  real- 
ize on  it  on  account  of  his  life-estate;  that  she 
insisted  on  his  buying  it,  and  said  if  he  did  not 
she  would  sell  to  some  one  else;  that  he  bought 
the  property  to  keep  it  from  falling  into  other 
hands,  and  paid  her  $1,000  for  it,  and  that  he 
had  to  borrow  money  to  pay  for  it.  He  pro- 
posed that  I  buy  it  from  him  at  the  same  price 
to  prevent  Mrs.  Helm  No.  2  and  her  children 
getting  a  foothold  in  my  estate." 

Mary  W.  Helm,  a  sister  of  appellant  and  ap- 
pellee, testified  on  behalf  of  appellant  as  fol- 
lows: "I  heard  a  conversation  between  father 
and  complainant,  in  which  he  advised  her  not 
to  sell  her  interest  in  said  lands.    He  told  her 


152 


ESTATES  IN  REAL  PROPERTY. 


it  would  be  worth  more  at  his  death  than  she 
could  get  for  it  then.  She  wanted  $1,200,  and 
he  told  her  he  could  not  give  more  than  $1,000; 
that  he  did  not  think  anyone  would  give  more 
than  that  when  they  could  not  get  possession 
until  he  died.  She  said  she  would  rather  have 
the  money  then,  to  buy  a  homestead.  They 
were  on  the  front  porch,  and  I  was  in  the  hall. 
I  think  this  was  in  July,  1881.  I  also  heard  pa 
tell  Mr.  Boyd  that  he  thought  Ella  was  very 
foolish  to  sell  her  land." 

.Tohn  J.  Helm,  Jr.,  and  J.  R.  Eastwood  testi- 
fied as  to  declarations  of  John  J.  Helm,  to  the 
effect  that  he  purchased  the  property;  but,  as 
these  declarations  were  made  in  his  own  favor, 
and  in  the  absence  of  appellee,  they  were  clear- 
ly incompetent. 

The  circuit  judge  found  that  the  deed  from 
appellee  to  her  father  was  a  mere  security,  and 
we  are  unable  to  say  that  the  evidence  does  not 
sustain  his  finding.  The  relation  in  which  John 
J.  Helm  stood  to  his  daughter  naturally  gave 
him  great  influence  over  her.  The  price  which 
he  is  claimed  by  appellant  to  have  paid  her  for 
her  property  was  greatly  below  its  real  value. 
Her  statement  that  he  promised  not  to  record 
the  deed  is  confirmed  by  the  fact  that  such 
deed,  although  executed  on  January  10,  1882, 
was  not,  as  matter  of  fa.ct,  recorded  in  White 
county  until  June  9,  1884,  nor  in  Wabash  coun- 
ty until  January  21, 1885.  It  is  true  that  she  did 
not  agree  to  pay  back  the  $1,000  at  a  definite 
time.  Her  father  would  appear  to  have  held 
out  to  her  the  idea  that  she  would  get  enough 
from  his  estate  to  pay  back  the  $1,000,  or  that 
there  would  be  enough  coming  to  her  from  his 


estate  to  cancel  the  indebtedness  of  $1,000. 
Still,  the  impression  made  by  the  evidence  is 
that,  if  he  did  not  actually  practice  a  fraud  up- 
on her,  he  induced  her  to  deed  to  him  her  prop- 
erty under  the  belief  that  in  some  way  it  was 
to  come  back  to  her,  and  that  she  was  not  to 
be  troubled  about  repaying  the  amount  ad- 
vanced to  her.  We  said  in  Workman  v.  Green- 
ing, supra:  "If  it  shall  appear,  no  matter  what 
the  form  of  the  transaction,  that  the  convey- 
ance is  in  fact  but  an  indemnity  or  security,  it 
will  be  held  a  mortgage;  and  the  character  of 
liability  against  which  indemnity  is  intended,  or 
the  Idnd  or  dignity  of  indebtedness  intended  to 
be  secured,  is  important." 

The  next  question  is  whether  appellant  had 
notice  of  appellee's  rights  when  he  received  the 
deed  from  his  father  of  his  sister's  one-seventh 
interest.  There  is  testimony  that  he  had  actual 
notice  of  such  rights.  Mrs.  Helm,  who  is  a  dis- 
interested witness,  swears  that  when  she  and 
her  husband  were  having  a  conversation  about 
her  signing  the  deed  to  appellant,  and  while 
she  was  reminding  him  of  his  promise  to  give 
the  laud  back  to  appellee,  and  was  refusing  to 
sign  the  deed  he  wanted  her  to  sign,  the  appel- 
lant was  in  the  adjoining  room  or  hall,  and  call- 
ed out  to  his  father  "Make  her  sign  it,"— show- 
ing that  he  heard  the  conversation. 

The  decree  directs  that  there  shall  be  return- 
ed to  appellant  the  $1,000  which  he  paid  to  his 
father,  with  interest  thereon,  subject  only  to 
the  deduction  of  rents  received  by  him  from  the 
property.  We  think  the  decision  of  the  court 
below  does  justice  between  the  parties.  The 
decree  of  the  circuit  court  is  afiirmed. 


WHAT  CAX  BE  MORTGAGED. 


153 


NELIGH  V.  MICHENOR  et  al. 
(11  N.  J.  Eq.  539.) 

Court  of  Chancery  of  New  Jersey.     Feb.  Term, 

1858. 

A.  Browuiiig  and  T.  P.  Carpenter,  for  com- 
plainant. .1.  F.  Randolph  and  P.  D.  Vroom, 
for  defendants. 

WILLIAMSON,  Ch,  In  the  year  1852  the 
complainant  entered  into  several  agreements  in 
writing,  with  different  individuals  and  with  the 
Atlantic  Land  Company  Association,  for  the 
purchase  of  several  tracts  of  land  in  the  county 
of  Atlantic. 

By  the  terms  of  the  agreement,  the  several 
tracts  were  to  be  conveyed  to  him  when  the 
consideration  money  was  paid.  Under  the 
agreements,  he  entered  into  possession.  He  then 
termed  a  partnership  in  business  with  John  G. 
Michenor,  one  of  the  defendants.  By  the  terms 
of  the  partnership  they  were  both  to  be  equally 
interested  in  the  several  tracts  of  land  embraced 
in  the  agreements.  Michenor  then  entered  into 
possession  with  the  complainant.  They  made 
valuable  improvements;  and,  on  one  of  the 
tracts,  erected  a  hotel,  at  a  cost  of  upwards  of 
fifty  thousand  dollars.  On  the  17th  October, 
1854,  they  made  a  settlement  between  them, 
and  dissolved  partnership.  It  was  found,  upon 
the  settlement,  that  the  complainant  had  made 
advances,  most  of  which  had  been  expended  in 
the  erection  of  the  hotel  and  other  improve- 
ments, to  an  amount  exceeding-  thirteen  thou- 
sand dollars.  It  was  agreed,  in  the  terms  of 
the  dissolution,  that  the  complainant  should 
convey  to  Michenor  all  his  interest  in  the  sev- 
eral tracts  of  land  mentioned  in  the  agreements; 
that  Michenor  should  pay  whatever  remained 
due  of  the  consideration  money;  that  he  should 
pay  all  the  outstanding  debts  of  the  partnership, 
and  should  execute  a  mortgage  upon  the  said 
land  to  secure  the  complainantthat  judgment  of 
$13,242.62,  in  five  equal  annual  payments.  The 
deed  was  executed,  and  delivered  by  the  complain- 
ant to  Michenor,  and  the  latter  executed  and  de- 
livered the  mortgage,  as  agreed  upon.  Michenor 
never  procured  any  title  to  the  land  to  be  made 
to  him;  but  with  his  consent,  in  the  year  1854, 
conveyances  were  made  to  Charles  Harlan,  an- 
other of  the  defendants,  who  undertook  to  pay 
what  remained  due  of  the  consideration  money 
and  some  mechanic  liens  which  were  upon  the 
hotel.  It  does  not  appear  that  there  was  any 
agreement  in  writing  between  the  complainant 
and  Harlan,  and  there  is  no  evidence  as  to  the 
particulars  of  the  agreement  upon  which  he  re- 
ceived the  conveyances. 

The  bill  charges  that  although  the  deeds  to 
Harlan  are  absolute  on  their  face,  it  was  un- 
derstood that  he  should  take  the  title  merely 
to  secure  future  advances;  it  alleges  that  the 
arrangement  between  Michenor  and  Harlan 
was  fraudulent,  and  was  made  for  the  purpose 
of  defeating  the  complainant's  mortgage,  and 
that  Harlan  had  notice  of  the  mortgage  before 
he  took  the  conveyances.    The  main  object  of 


the  bill  is  to  establish  the  mortgage  as  a  lien 
upon  the  several  tracts  of  land  particularly  de- 
scribed in  it,  and  conveyed  to  Harlan,  and  the 
priority  of  the  mortgage. 

Harlan  and  Michenor  have  put  in  their  an- 
swers to  the  bill  separately.  They  both  deny 
that  Harlan  took  the  conveyances  to  secure  fu- 
ture advances,  but  allege  that  the  title  is  ab- 
solute in  him,  and  without  any  implied  reser- 
vation in  favor  of  Michenor.  Michenor  denies 
that  he  gave  any  potice  to  Harlan  of  the  com- 
plainant's mortgage,  and  the  latter  denies  that, 
at  the  time  of  the  conveyances  to  him,  or  at  the 
time  he  i>aid  the  consideration  money,  he  had 
any  knowledge  whatever  of  the  mortgage.  And 
he  denies  the  validity  of  the  mortgage  as  a  lien 
upon  the  property,  even  admitting  he  had  notice. 

Was  this  mortgage  a  valid  mortgage?  and  did 
Harlan  have  notice  of  it?  If  these  questions 
are  answered  in  the  affirmative,  the  complainant 
is  entitled  to  relief,  leaving  only  one  other 
question  to  be  decided — whether  the  mortgage 
is  entitled  to  priority  over  the  advances  made 
by  Harlan. 

The  validity  of  this  mortgage  is  denied,  upon 
the  ground  that  Michenor,  the  mortgagor,  had 
not  any  such  title  to,  or  interest  in,  the  land 
as  was  capable  of  being  mortga.ged.  The  com- 
plainant was  the  purchaser  under  agreements 
with  the  vendor  under  hand  and  seal,  that  they 
would  convey  to  him  the  land,  at  a  future  day, 
upon  his  paying  the  consideration  money  ex- 
pressed in  the  agreements.  Has  the  purchaser, 
under  such  an  agreement,  an  interest  in  the 
land  which  is  the  subject  of  mortgage?  For  if 
the  complainant  had  an  interest  capable  of  be- 
ing mortgaged,  Michenor  had  also,  for  all  the 
interest  which  the  complainant  had,  he  assigned 
and  conveyed  to  Michenor. 

In  2  Story,  Eq.  Jur.  §  1021,  it  is  said:  "As 
to  kinds  of  property  which  may  be  mortgaged, 
it  may  be  stated  that,  in  equity,  whatever  prop- 
erty, personal  or  real,  is  capable  of  an  absolute 
sale,  may  be  the  subject  of  a  mortgage.  This  is 
in  conformity  to  the  doctrine  of  the  civil  law — 
Quod  emptionem,  venditioncm  que  recipit,  etiam 
pignorationem  recipere  potest.  Therefore  rights 
in  remainder  and  reversion,  possibilities  coupled 
with  an  interest,  rents,  franchises,  and  choses 
in  action,  are  capable  of  being  mortgages." 

Everything  which  is  the  subject  of  a  contract, 
or  which  may  be  assigned,  is  capable  of  being 
mortgaged.  The  right  or  interest  which  the 
complainant  had  in  the  lands  was  created  by 
contract;  and  it  was  the  valuable  right  of  hav- 
ing a  legal  conveyance  of  the  land,  upon  his 
complying  with  the  terms  of  the  contract.  He 
had  acquired  an  interest  in  the  land,  which 
could  not  be  affected,  or  conveyed  away  by  the 
vendor,  without  a  fraud  upon  the  vendor's 
rights.  And  a  purchaser,  who  should  have  re- 
ceived a  conveyance  with  knowledge  of  the  ex- 
isting agreement,  would  have  been  held,  in  equi- 
ty, as  the  vendor  himself  was  in  fact,  a  mere 
trustee  for  the  complainant.  Equity  considers 
the  vendor  as  a  trustee  for  the  vendee  of  the 
real  estate,  and  the  vendee  as  a  trustee  for  the 
vendor  of  the  purchase  money.     The  vendee  is 


154 


ESTATES  IN  KEAL  PROPERTY. 


so  far  treated  as  the  owner  of  the  land  that  it 
is  devisable  and  descendible  as  his  real  estate, 
and  the  money  is  treated  as  the  personal  estate 
of  the  vendor,  and  goes  to  his  personal  repre- 
sentatives at  his  death.  2  Story,  Eq.  Jur.  § 
112.  There  cannot  be  a  doubt  that  such  an 
interest  as  the  complainant  had  under  his  con- 
tracts for  purchase,  and  which  he  assigned  to 
Michenor,  is  capable  of  being  mortgaged.  It  is 
the  subject  of  an  equitable  lien  or  trust,  which 
a  court  of  equity  will  enforce  and  protect.  In- 
terests in  property  are  protected  by  courts  of 
equity  which  are  not  recognized  at  law  as  valid 
or  effectual  as  subject  matters  of  legal  convey- 
ances or  assignments.  1  Pow.  Mortg.  17,  in 
enumerating  the  things  which  are  capable  of 
being  mortgagetl,  says:  "Everything  which  may 
be  considered  as  pi-operty,  whether,  in  the  tech- 
nical language  of  the  law,  denominated  real 
or  personal  property,  may  be  the  subject  of  a 
mortgage.  Advowsous,  rectories  and  tithes  may 
be  the  subject  of  a  mortgage.  Reversions  and 
remainders,  being  capable  of  grant  from  man 
to  man,  are  mortgagable.  Possibilities,  also, 
being  assignable,  are  mortgagable,  a  mortgage 
of  them  being  only  a  conditional  assignment." 
A  tenant  at  will  has  not  such  an  estate  or  prop- 
erty in  lands  as  can  be  mortgaged,  but  any  es- 
tate in  fee  simple,  fee  tail,  for  life  or  years,  in 
any  lauds,  or  in  any  rent  or  profit  out  of  the 
same,  may  be  mortgaged.    1  Pow.  Mortg.  18. 

The  case  of  Parkist  v.  Alexander,  1  Johns. 
Ch.  3134,  was,  in  its  leading  features,  very  simi- 
lar to  the  present  case,  and  its  decision  neces- 
sarily involved  the  question  we  are  now  con- 
sidering. Tucker  made  a  parol  agreement  with 
Alexander,  who  acted  as  agent  for  Ellis,  the 
owner  of  the  property,  for  a  lease  to  Tucker,  in 
fee,  for  a  lot  of  land,  subject  to  the  annual 
rent  of  three  pounds.  Parkist,  the  complainant 
in  the  suit,  purchased  Tucker's  right,  and  took 
possession  of  the  premises,  and  made  valuable 
improvements.  He  then  sold  the  premises  to 
McKnight,  and  gave  him  a  quit-claim  deed;  and, 
to  secure  the  payment  of  the  purchase  money, 
took  his  bond  and  mortgage,  which  was  duly 
recorded.  Alexander  procured  the  lease  from 
Ellis,  the  owner  of  the  premises,  and  then  Mc- 
Knight conveyed  to  Alexander  for  $700.  The 
answer  denied  that  Alexander  had  any  notice 
of  the  mortgage.  The  chancellor  sustained  the 
mortgage,  and  decided  that  the  registry  of  it 
was  notice  to  a  subsequent  bona  fide  purchaser. 
It  will  be  observed,  that  when  McKnight  mort- 
gaged the  premises,  he  had  no  other  interest  in 
them  than  the  assignment  of  Parkist's  right, 
under  a  verbal  agreement  for  a  lease  between 
Tucker  and  the  agent  of  Ellis,  the  owner,  and 
the  right  to  which  lease  Parkist  had  purchased 
of  Tucker.  The  interest  which  the  mortgagee 
had  in  the  laud  was  an  interest  similar  to  that 
which  Michenor  had  when  he  mortgaged  to  the 
complainant.  McKnight  had  a  right  for  a  lease 
in  fee,  subject  to  the  payment  of  an  annual 
rent.  If  an  interest  like  that  was  capable  of 
being  mortgaged,  then  surely  Michenor,  who  had 
a  right  to  a  conveyance  in  fee,  had  such  an  in- 
terest as  would  support  a  mortgage.     The  mere 


fact  of  all  the  consideration  money  not  having- 
been  paid,  cannot  affect  the  question,  whether 
his  interest  was  such  as  could  be  mortgaged.  I 
think  that  Michenor  had  an  interest  capable  of 
being  mortgaged,  and  that  it  created  a  valid  lien 
upon  the  land  subject  to  the  rights  of  the  ven- 
dor under  the  agreement. 

Did  Harlan  have  notice  of  the  mortgage? 
The  mortgage  was  duly  recorded.  It  is  insist- 
ed that  the  registry  was  notice.  It  does  ap- 
pear to  me,  notwithstanding  the  decision  of 
Parkist  v.  Alexander,  that  the  registi-y  of  such 
a  mortgage  ought  not  to  be  considered  as  no- 
tice. If  it  is  notice,  it  is  notice  to  all  the  world. 
Now  if  Leeds,  one  of  the  persons  with  whom 
the  complainant  made  an  agreement  to  pur- 
chase, had  sold  the  premises  to  a  bona  fide  pur- 
chaser without  actual  notice  of  this  mortgage, 
would  such  purchaser  have  been  affected  by  the 
registry  of  such  equitable  mortgage?  The 
agreement  was  not  recorded.  There  was  no 
authority  to  record  it.  A  bona  fide  purchaser 
would  not  be  affected  by  such  agreement.  If 
not,  could  he  be  affected  by  the  registry  of  a 
mortgage  executed  by  the  vendee  of  such  agree- 
ment? The  object  of  the  registry  is  to  give 
notice  to  subsequent  purchasers.  But  the  reg- 
istry of  a  mortgage  like  this  is  no  protection. 
The  title  upon  the  record  was  in  Leeds,  and 
finding  the  title  in  him,  a  person  who  went  to 
the  record  to  search  for  encumbrances  upon 
the  premises  would  have  no  intimation  that  it 
was  necessary  to  search  in  the  name  of  Mich- 
enor. There  was  nothing  upon  the  record  to 
show  that  he  had  any  interest  in  the  land,  or 
to  give  him  any  clue  whatever  to  this  mort- 
gage; and  if  he  was  required  to  search  for 
such  a  mortgage,  then  he  would  be  obliged  to 
search  them  through  every  name  to  be  found 
in  the  registry  books. 

But  I  do  not  deem  it  necessary  to  decide  this 
point.  I  think  it  is  proved,  beyond  all  dispute, 
that  Harlan  had  actual  notice  of  this  mortgage. 
In  his  petition  to  open  the  decree  pro  confesso, 
which  was  obtained  against  him  in  this  cause, 
and  which  is  under  oath,  he  says  that  on  or 
about  the  25th  of  May,  1855,  he  took  a  deed 
from  Charles  Leeds  and  wife  for  the  land  em- 
braced in  their  agreement  with  the  complain- 
ant; that,  on  the  19th  day  of  May,  1855,  Hack- 
ett  and  wife  executed  a  deed  to  him  for  the 
land  embraced  in  their  agreement  with  the  com- 
plainant, w'hich  was  delivered  on  or  about  the 
25th  of  May,  1855,  and  that  the  Camden  and 
Atlantic  Land  Company  executed  a  deed  to  him 
on  the  27th  of  April,  1855,  for  the  land  men- 
tioned in  their  agreement  with  the  complainant, 
but  which  was  not  delivered  until  the  first  of 
the  month  of  June,  1855.  In  his  answer,  he 
stales  that  before  he  had  any  knowledge  or  no- 
tice whatever  of  the  complainant's  mortgage,  he 
had  not  only  made  the  agreement  with  Mich- 
enor, and  paid  the  money  for  the  property,  but 
that  he  had  obtained  the  title  deeds  for  the 
property  before  such  knowledge. 

He  further  states  that  some  person,  some 
time  in  the  spring  of  1855,  brought  to  him  a 
mortgage  purporting  to  be  given  by   Michenor 


WHAT  CAN  BE  MORTGAGED. 


155 


to  the  complainant,  and  said  to  cover  the  prop- 
erty, or  some  part  thereof,  purchased  by  him, 
but  whether  it  did  so  cover  it  or  not,  he  can- 
not positively  say,  but  that  prior  to  that  time 
his  agreement  with  Michenor  had  been  made 
and  consummated,  the  money  paid,  and  the 
deeds  all  been  executed,  and  that  the  deeds 
from  Hackett  and  wife  and  Leeds  and  wife 
had  been  actually  delivered,  and  that  be  thinks 
and  believes  that  the  deed  from  the  Camdeu 
and  Atlantic  Land  Company  had  also  been  de- 
livered. In  his  petition  he  states  that  the  first 
information  or  knowledge  he  ever  had  that 
there  was  any  such  mortgage  or  agreement  be- 
tween the  complainant  and  Michenor  was  some 
time  after  the  deeds  had  been  executed  and  de- 
livered, and  the  purchase  money,  in  full,  paid, 
and  that  such  information  was  given  to  him  by 
Judge  Carpenter,  the  counsel  of  Michenor, 
which  was  some  time  after  the  deed  from  the 
land  company  had  been  made,  and  was  on  the 
day,  and  at  the  time,  the  purchase  money  was 
paid,  and  the  deed  of  the  company  delivered. 

It  is  possible,  with  some  difficulty,  to  recon- 
cile the  discrepancies  between  the  petition  and 
the  answer  with  a  disposition  to  tell  the  truth; 
but  the  evidence  so  completely  disproves  the 
statements  of  both,  as  to  render  such  an  at- 
tempt altogether  unnecessary  and  unavaihng. 

James  H.  Castle  says  that  in  May,  1855,  be- 
tween the  10th  and  15th,  the  complainant 
placed  the  mortgage  in  his  hands  to  sell  for  him, 
and  requested  him  to  make  application  to  Har- 
lan; that  on  or  about  the  20th  of  May,  he  laid 
the  mortgage  before  Harlan;  that  he  spent 
some  time  with  him  about  the  matter;  that  Har- 
lan examined  the  papers  carefully,  and  took  a 
memorandum  of  the  property,  and  the  dates  of 
the  mortgage,  &c.;  that  he  examined  the  map, 
and  when  they  separated  said  he  would  see  wit- 
ness again  upon  the  subject;  that  on  the  next 
day  he  called  and  asked  to  look  at  the  papers, 
which  were  shown  him,  when  he  remarked  that 
the  mortgage  was  not  worth  the  paper  on  which 
it  was  written.  Witness  says,  in  consequence 
of  Harlan's  remark,  he  went  to  the  comjjlain- 
ant,  and  told  him  he  had  better  take  legal 
counsel,  and  recommended  Judge  Carpenter. 
Judge  Carpenter  testifies,  refreshing  his  mem- 
ory from  an  entry  in  his  docket,  that  the  com- 
plainant retained  him  on  the  25th  of  May,  and 
then  placed  the  mortgage  in  his  hands.  There 
was  no  one  of  the  deeds  delivered,  and  no 
money  paid  before  the  25th  of  May.  Harlan 
so  states  in  his  answer  and  his  petition.  So 
that  it  is  proved  that  before  he  received  a  deed, 
or  paid  any  money,  he  had  full  notice  of  the 
mortgage. 

Isaac  Loyd  testifies  that  he  was  the  secretary 
and  treasurer  of  the  Camden  and  Atlantic 
Land  Company;  that  the  deed  from  that  com- 
pany to  Harlan  was  delivered  by  the  witness  to 
Harlan  on  the  8th  of  June,  1855,  and  at  that 


time  he  received  from  him  the  purchase  money. 
The  witness  further  testifies  that  Judge  Car- 
penter requested  him  to  give  notice  to  Harlan 
of  the  mortgage  before  its  delivery;  that  he 
gave  him  the  notice,  and  that  Harlan  made  no 
reply,  but  smiled  as  though  he  knew  all  about 
it,  and  as  if  it  was  of  no  couse<iuence. 

The  evidence  establishes  the  fact  that  Har- 
lan had  actual  notice  of  the  complainant's  mort- 
gage before  his  purchase. 

It  appears  that,  at  the  time  of  Harlan's  pur- 
chase, there  was  due  and  payable  to  the  gran- 
tors, for  purchase  money  upon  their  several 
agreements  the  sum  of  five  thousand  two  hun- 
dred and  eighty-one  dollars,  and  that  this 
amount  was  paid  by  Harlan.  He  also  made 
other  advances  to  satisfy  encumbrances  upon 
the  property.  Under  ordinary  circumstances, 
these  payments  would  have  been  decreed  exist- 
ing liens  upon  the  property  in  the  hands  of  Har- 
lan, having  priority  over  the  complainant's 
mortgage.  Although  Michenor,  in  his  agree- 
ment with  the  complainant,  was  bound  to  pay 
the  purchase  money,  it  appears  he  was  unable 
to  do  so.  It  was  necessary  the  money  should 
be  paid,  or  the  title  of  the  vendee  under  the 
agreement  would  have  been  forfeited.  The  pay- 
ment of  this  money,  therefore,  was  necessary  in 
order  to  complete  the  title  which  supports  the 
mortgage.  If  a  third  person,  under  such  cir- 
cumstances, had  advanced  the  money  in  order 
to  prevent  a  forfeiture  of  the  vendee's  rights 
under  the  agreement,  I  think  it  would  have 
been  equitable  that  he  should  be  reimbursed. 
But  Harlan  claims  no  such  equity.  He  does 
not  pretend  that  he  paid  the  money  for  the  pur- 
pose of  protecting  the  mortgage.  On  the  con- 
trary, he  is  detected  in  an  attempt  to  deprive 
the  complainant  of  his  security.  His  object 
was  to  defeat  the  mortgage;  and  having  been 
thwarted  in  this  unlawful  purpose,  he  has  no 
claim  whatever  to  the  interference  of  this  court 
for  his  protection.  He  must  stand  upon  his  le- 
gal rights. 

There  was.  an  objection  made,  that  at  the 
time  of  filing  the  bill  there  was  no  default  of 
payment  of  anything  due  upon  the  mortgage. 
If  such  were  the  fact,  the  complainant  had  a 
right,  under  the  circumstances,  to  file  his  bill 
to  protect  his  lien.  That  being  established,  he 
has  now  a  right  to  have  it  enforced  for  what- 
ever may  be  due  upon  it  at  the  time  of  the  de- 
cree. 

There  must  be  a  reference  to  a  master  to  take 
an  account  of  what  is  due  upon  the  mortgage 
and  upon  the  other  encumbrances,  which  ap- 
pear, by  the  pleadings,  to  be  undisputed.  In 
taking  the  account,  Michenor  will  have  an  op- 
portunity of  showing  what  credit  he  is  entitled 
to  upon  the  mortgage,  and  for  that  purpose  the 
master  can  use  the  depositions  already  taken, 
and  may  take  such  other  testimony  as  the  par- 
ties may  see  proper  to  ofifer. 


156 


ESTATES  IN  REAL  PROPERTY. 


RUSSELL'S  APPEAL. 

(15  Pa.  St.  319.) 

Supreme   Court  of  Pennsylvania.     1850. 

Appeal  from  court  of  common  pleas,  Wayne 
county. 

Crane  &  Dimmick,  for  appellant  Russell. 
Mr.  Mallery,  for  appellee.  Mr.  Miner,  for  Mc- 
Gowan.     Mr.  Waller,  for  Graves  and  others. 

COULTER,  J.  Roberts,  the  defendant,  as 
whose  estate  the  land  was  sold,  purchased  it  by 
articles  of  agreement,  dated  11th  April,  1846, 
for  $800,  of  which  he  paid  $463,  went  into  pos- 
session, and  remained  in  possession  until  the 
sale  and  distribution  of  the  money  below.  Rob- 
erts became  embarrassed  with  debts,  and  on  the 
5th  July,  1848,  he  executed  to  Stone  &  Graves 
and  Graves  &  Moore  an  assignment  of  the  con- 
tract with  Dunn  under  which  he  held  the  land, 
and  all  his  right  and  title  thereby  acquired,  as 
collateral  security  for  the  amount  due  them. 

This  assignment  was  never  recorded,  and 
Roberts  still  remained  in  possession.  On  the 
19th  August,  1848,  after  the  unrecorded  as- 
signment, Russell  obtained  his  judgment,  and 
on  the  9th  September  following,  McGowan  ob- 
tained his  judgment.  These  two  judgments 
claim  the  money  produced  by  the  sale,  accord- 
ing to  their  priority.  But  on  the  1st  Decem-* 
ber,  1848,  Roberts,  by  parol,  surrendered  the 
land  to  Graves,  one  of  the  assignees;  and  on 
the  same  day,  Dunn  and  wife  conveyed  to  C.  C. 
Graves,  consideration  mentioned  in  deed,  $900. 
On  the  4th  December,  1848,  Graves  and  wife 
conveyed  to  H.  D.  Roberts,  the  defendant,  who 
gave  a  judgment  note  to  Graves  for  $800,  which 
was  immediately  entered  up. 

To  this  last  judgment  the  court  below  award- 
ed the  whole  money  made  by  the  sale  on  Rus- 
sell's judgment.  It  was  contended  by  Russell 
and  McGowan  that  they  were  entitled  to  the 
whole  fund,  because  the  note  given  by  Russell 
falsely  and  fraudulently  recited  that  it  was  for 
the  purchase-money.  But  it  is  well  enough  to 
deliver  the  case  at  once  from  this  argument,  be- 
cause these  judgments  could  only  bind  the  equi- 
ty, if  they  bound  anything,  which  was  in  Rob- 
erts at  the  time  they  were  obtained,  that  is, 
after  the  assignment  to  Graves  &  Moore.  The 
stream  cannot  rise  above  the  fountain.  And 
the  balance  of  purchase-money  then  due  was  a 
previous,  valid,  subsisting  lien.  The  shuffling 
between  Dunn,  Roberts,  and  Graves  cannot 
give  to  Russell  and  McGowan  more  than  they 
were  entitled  to,  nor  deprive  Dunn  or  his  repre- 
sentative of  that  to  which  he  had  a  lawful 
claim. 

The  real  question  then  is,  whether  the  judg- 
ments of  Russell  and  McGowan  bound  the  eq- 
uity which  Roberts  had  in  the  land  at  the  time 
of  the  assignment  to  Graves  &  Moore?  And 
that  will  depend  upon  the  effect  of  that  assign- 
ment. It  was  not  an  absolute  sale  or  transfer 
of  the  equity,  because  it  is  expressed  on  its  face 
to  be  a  collateral  security  for  the  payment  of 
a   debt.     It    was,    therefore,   at   most,    nothing 


more  than  a  mortgage.     Even  although  a  con- 
veyance be  absolute  in  its  terms,  if  it  is  intend- 
ed by  the  parties  to  be  a  mere  security  for  the 
payment  of  a  debt,  it  is  a  mortgage.      Keene  v. 
Gilmore,  6  Watts,  409;   Clark  v.  Henry,  2  Cow. 
324;   Henry  v.  Davis,  7  Johns.  Ch.  40.     Roberts 
still  continued  the  debtor  of  Graves  &  Moore. 
The  debt  was  not  extinguished;    it  was,  there- 
fore, a  mortgage.     Nor  has  the  writing  the  dis- 
tinctive  marks   of   a   conditional   sale,    for  the 
same  reason,  to  wit,  that  the  original  debt  was 
by  the  face  of  the  papers  till  subsisting.     But 
it  was  never  recorded,  and,  therefore,  must  be 
postponed  to   a  subsequent  judgment.     Jaques 
V.  Weeks,  7  Watts,  261;    17  Serg.  &  R.  70; 
St.  March  28,  1820;   Dunl.  Laws  Pa.  (2d  Ed.) 
p.  354.     It  is  contended,  however,  that  the  con- 
tract for  the  conveyance  of  the  land  to  Roberts 
was  but  a  chose  in  action,  and  that  the  assign- 
ment passed  the  title,  without  the  necessity  of 
recording;    that  it  is  not  within  the  recording 
acts;   and  Craft  v.  Webster,  4  Rawle,  241,  and 
Mott  V.  Clark,  9  Pa.  St.  399,  were  cited.     But 
these  cases  do  not  carry  the  defendant  in  error 
through.     An  article  of  agreement  for  the  sale 
of  land,  accompanied  by  delivery  of  possession 
and  payment  of  part  of  the  purchase-money,  is 
much  more  than  a  chose  in  action;  it  is  an  abid- 
ing interest  in  the  land  itself.     It  may  be  bound 
by  judgment;    is  the   subject  of  judicial  sale, 
not  as  a  chattel,  but  as  an  interest  in  the  land. 
In  the  early  history  of  Pennsylvania,  improve- 
ment rights  were  considered  as  chattels.     But 
that  time  has  long  passed,  and  pre-emption  or 
inchoate  interests  are  bound  by  judgments  and 
sold,  because  every  interest  arising  out  of  real 
estate,  equitable  as  well  as  legal,  is  considered 
as  an  interest  in  the  land.     Thousands  of  acres 
are  held  in  this  commonwealth  by  location  and 
survey  only.      It   would    sound    strangely   to   a 
lawyer  of  the  interior  to  say  that  these  inter- 
ests were  not  real  estate,   and  the  transfer  or 
incumbrance  of  them  not  subject  to  the  record- 
ing laws.      Such  a  doctrine  would  upset  estates 
and  change  the  accepted  principles  of  the  com- 
monwealth.   They  have  from  ancient  time  been 
dealt  with  by  the  people  as  interest  in  real  es- 
tate, like  other  equitable  interests  in  land;   and, 
being  the  subject  of  contract  and  sale  as  such, 
there  is  the  same  reason  for  their  being  subject 
to  the  recording  acts  as  the  legal  title.     The  ex- 
perienced and  learned  counsel  states  that  he  has 
been  unable  to  find  any  reported  case  in  which 
such  equities  were  adjudged  to  be  the  subject 
of  the  recording  acts.     But  it  may  never  before 
have   been   drawn    in   question.     I    know    very 
well,  and  I  think  every  practitioner  is  acquaint- 
ed   with    the    fact,    that    mortgages    are    often 
given  upon  equitable  estates,  and  that  equitable 
estates   are  often   the   subject  of   bargain   and 
sale;    and  I  may  say,  that  I  don't  recollect  to 
have  seen  it  contended  in  any  case  that  the  re- 
cording acts  applied  only  to  strictly  legal  titles, 
or  that  judgments  were  liens  or  attached  only 
upon  legal  estates.     The  subsequent  judgments, 
therefore,  became  liens  at  the  time  of  their  en- 
try upon  the  equitable  interest  of  Roberts,  the 
assignment  to  Graves  &  Moore  being  merely  a 


EQUITABLE  MORTGAGE. 


157 


mortgage  or  security  for  a  debt,  and  therefore, 
not  being  recorded,  must  give  way  to  the  sub- 
sequent judgments. 

The  decree  is  therefore  reversed,  and  it  is 
modified,  so  as  to  award  to  the  legal  title,  or 
those  representing  it,  so  much  of  the  money  or 
fund  in  court  as  was  due  for  balance  of  pur- 


chase-money by  Roberts  at  the  time  Russell  ob- 
tained his  judgment;  and  the  residue  is  award- 
ed to  Russell's  judgment,  unless  the  residue  will 
more  than  satisfy  it;  and,  in  such  case,  what 
remains  is  awarded  to  McGowan's  judgment. 

The  record  is  remitted  to  the  court  below  for 
the  purpose  of  carrying  out  this  modified  decree. 


158 


ESTATES  IN  REAL   PROPERTY. 


GEORGE  V.  KENT  et  al. 

(7  Allen.  16.) 

Supreme  Judicial   Court  of  Massachusetts. 
Worcester,  Oct.  Term,  1863. 

Bill  in  equity  to  redeem  land  from  a  mort- 
gage. 

It  appeared  at  the  hearing  that  on  the  7th 
of  May,  1850,  Nathaniel  Chessman,  being  the 
owner  of  a  parcel  of  land  on  the  south  side  of 
Water  street  in  Milford,  containing  about  three 
acres,  mortgaged  it  to  Maxcy  Cook;  that  after- 
wards, on  the  1st  of  July,  1853,  he  conveyed  a 
small  lot  on  the  easterly  part  thereof  to  Hugh 
Galliher  by  a  deed  of  warranty  which  was 
duly  recorded;  that  afterwards,  on  the  5th  of 
June,  1854,  he  conveyed  a  small  lot  on  the 
westerly  part  thereof  to  Patrick  Murphy,  by  a 
deed  of  warranty  which  was  not  recorded;  and 
that  afterwards,  on  the  2d  of  November,  1854, 
he  conveyed  another  small  lot  lying  between  the 
lots  conveyed  to  Galliher  and  Murphy,  to  the 
plaintiff,  by  a  deed  of  mortgage  which  was  duly 
recorded,  containing  the  following  description  of 
the  mortgaged  premises:  "Beginning  at  the 
northeasterly  corner  of  the  premises,  on  Wa- 
ter street,  on  land  of  Hugh  Galliher;  thence  S. 
2°  W.  by  land  of  said  Galliher  eight  rods; 
thence  S.  87i^°  W.  five  and  one-half  rods  to 
land  of  Patrick  Murphy,  bounding  southerly  on 
land  of  N.  Chessman;  thence  N.  2°  E.  eight 
rods  to  said  street,  bounding  westerly  on  land 
of  said  Murphy;  thence  easterly  by  said  street 
five  and  one-half  rods  to  the  place  of  jpegin- 
ning."  The  mortgage  to  Maxcy  Cook  was  as- 
signed to  the  defendants  in  February,  1861;  and 
in  May,  1861,  they  commenced  an  action  against 
the  plaintiff  to  foreclose  it,  describing  in  their 
writ  the  lot  conveyed  to  the  plaintiff,  and  no 
more,  and  obtained  a  conditional  judgment  in 
February,  1862,  for  the  sum  of  $1,679.15.  In 
April,  1861,  the  lot  conveyed  to  Murphy  be- 
came vested  in  the  defendant  Kent  by  mesne 
conveyances. 

The  plaintiff  contended  that  the  Murphy  lot 
should  be  held  to  contribute,  in  proportion  to 
its  value,  towards  the  redemption  of  the  Cook 
mortgage;  and  the  case  was  reserved  by  Chap- 
man, J.,  for  the  determination  of  the  whole 
court. 

P.  C.  Bacon  (P.  E.  Aldrich,  with  him),  for 
plaintiff.      G.  F.  Hoar,  for  defendants. 


CHAPMAN,  J.  It  is  not  denied  that  the 
plaintiff  has  a  right  to  redeem  on  payment  of 
the  amount  for  which  conditional  judgment  was 
rendered;  but  he  claims  the  right  on  payment 
of  a  less  sum.  He  insists  that  as  his  deed  was 
a  deed  of  warranty,  and  was  made  and  record- 
ed, while  the  deed  to  Murphy  was  unrecorded, 
he  has  a  right  to  hold  the  Murphy  lot  liable  to 
contribute  to  the  payment  of  the  Cook  mortgage. 
This  position  would  be  correct  if  there  were  no 
other  facts  to  affect  it.  But  the  defendants  re- 
ply that  he  had  notice  of  the  deed  to  Murphy. 
The  fact  relied  on  to  prove  such  notice  is,  that 
Murphy's  lot  adjoins  him  on  the  west,  and  in 
his  deed  he  is  bounded  westerly  on  land  of  Pat- 
rick Murphy.  The  court  are  of  opinion  that 
this  was  sufficient  notice  of  Murphy's  title.  Be- 
fore the  enactment  of  Rev.  St.  c.  59,  §  28,  ac- 
tual notice  of  an  unrecorded  deed  was  not  nec- 
essary; and  circumstantial  evidence  of  title  was 
held  to  be  sufficient.  But  the  Revised  Statutes 
made  a  change  in  this  respect,  and  required  that 
there  should  be  actual  notice.  Curtis  v.  Mun- 
dy,  3  Mete.  (Mass.)  405;  Pomroy  v.  Stevens, 
11  Mete.  (Mass.)  244;  Mara  v.  Pierce,  9  Gray, 
306;  Parker  v.  Osgood,  3  Allen,  487.  The  case 
of  Curtis  v.  Muudy  is,  to  some  extent,  over- 
ruled by  the  later  cases;  yet  none  of  them  hold 
it  to  be  necessary  that  the  notice  shall  be  by 
actual  exhibition  of  the  deed.  Intelligible  in- 
formation of  a  fact,  either  verbally  or  in  writ- 
ing, and  coming  from  a  source  which  a  party 
ought  to  give  heed  to,  is  generally  considered  as 
notice  of  it,  except  in  cases  where  particular 
forms  are  necessary.  In  this  case  no  particu- 
lar form  is  necessary.  The  description  of  the 
land  in  the  plaintiff's  deed  was  equivalent  to  an 
affirmation  of  his  grantor  that  the  land  lying 
west  of  it  was  owned  by  Patrick  Murphy,  by 
virtue  of  some  proper  instrument  of  convey- 
ance. He  knew  from  this  information  that 
Murphy's  title  was  prior  to  his  own.  Having 
such  a  title,  and  the  plaintiff  having  notice  of  it, 
MurphJ'  and  his  grantees  are  not  liable  to  con- 
tribute towards  the  redemption  of  the  Cook 
mortgage.  Chase  v.  Woodbury,  6  Cush.  143; 
Bradley  v.  George,  2  Allen,  392. 

The  plaintiff  is  entitled  to  redeem  on  pay- 
ment of  the  amount  of  the  conditional  judg- 
ment against  him,  with  interest,  deducting  rents 
and  profits  received. 


ACCOUNTING. 


159 


GASKELL  V.  YIQUESNEY  et  al. 

(23  N.  E.  791,  122  Ind.  ai4.) 

Supreme  Court  of  Indiana.     Feb.  21,  1890. 

Appeal  from  circuit  court,  Hendricks 
county,  A.  C.  Ayres,  Judge. 

/,.  A.  Barnett,  for  ai)pellatit.  Oo.  C. 
Harvey  and  L.  M.  Cawpbell,  iov  appel- 
lees. 

COFFEY.  J.    On  the  :'.()th  day  of  August, 
1876,  Jules  A.  Viquesney  and  wife  executed 
to   George  W.   Robinson  a  mortgage  on 
real  estate  in  Danville,  Hendricks  county, 
Ind.,  to  secure  the  payment  of  a  promissory 
note  for  the  sum  of  $1,446.76,  which  mort- 
gage u-as  duly   recorded.     Prior   to  said 
date  the  said  Jules  A.  Viquesney  had  exe- 
cuted two  other  mortgages  upon  the  same 
real  estate,  one  to  Enion  Singer,  and   an- 
other to   Tracy   and   Bingham,   the   last- 
named  being  the  senior  mortgage  on  said 
real  estate.     The    mortgage    executed  to 
Singer  was   foreclosed   in    the   Hendricks 
circuit  court,  and  the  property  therein  de- 
scribed bid  in  bv  John  M.  Shirley  and  Will- 
iam  N.  Crabb  for  the  sum  of  $973.93;  and 
on  the  28th  day  of  May,  1878,  they  received 
a  sheriff's  deed  therefor.    George  W.  Kobin- 
Ron  was  not  made  a  party  to  the  suit  to 
foreclose  this   mortgage.     The  appellant 
subsequently    became,    and    now    is,   the 
owner  of  the  note  and  mortgage  executed 
to  the  said  Robinson,  and  now  prosecutes 
this  suit  for  the  purpose  of  being  allowed 
to  redeem  from  the  sale  on  the  Singer  mort- 
gage, and  to  charge  the  said  Sliirley  and 
Crabb  with  the  rents  and   profits  of  said 
real  estate  during  the  time  they  have  held 
and  been  in  possession  of  the  same.    Crabb 
has  conveyed  his  interest  in   the  property 
to  Shirley."   The  appellee  Shirley  answered  : 
(1)  That  he  was  the  owner  in  feeof  theland 
described   in   the  complaint,  having  pur- 
cha.sed  the  same  of  Thomas  J.  Cofer,  as- 
signee in  bankruptcy  of  the  said  Jules   A. 
Viquesney,  on   the  20th  day  of  June,  1877, 
and   having  received  a  deed  therefor  from 
said   Cofer  as  such  assignee,  the  said  Vi- 
quesney having  previously  been  adjudged 
a  bankrupt  by  the  United   States   district 
court  for  the  state  of  Indiana;  that  he  al- 
so held  title  to  said   real  estate  under  a 
sheriff's    deed    therefor    executed    by  the 
sheriff  of  Hendricks  county  on  the   2Sth 
day  of  May,  1878,  which  deed  was  execut- 
ed to  him  on  a  sale  of  said  premises  by  the 
sheriff  of  said   county  in   the  foreclosure 
proceeding  set  out  in  the  complaint  on  the 
Singer  mortgage,  and  that  the  mortgage 
executed  to  the  said  George  W.  Robinson, 
which    the  appellant  is  now    seeking   to 
foreclose,  was  executed  without  any  con- 
sideration, and  for  the  purpose  of  cheat- 
ing, hindering,  and   delaying  the  creditors 
of  the  said  Viquesney.     The  second  para- 
graph  avers   that   the  mortgage  in   suit 
was  given  as  an  indemnity,  and  tliat  said 
K(M>nison  liad  neverbeen  damaged  orcom- 
pelled  to  pay  the  debt  against  which  the 
mortgage  was   given  to  secure   him.     (3) 
In   the  third   answer  to  so   much   of  the 
complaint  as  demands  and   requires  him 
to  account  for  the  rents  and  profits  of  the 
real   estate  described   in  the  complaint,  he 
averred   that   he  was   tlie  owner  in  fee   of 
the  real  estate  described  in  the  complaint 


by  virtue   of  a  judicial   sale  made  of  the 
same  by  order  of  the   district  court  of  the 
United  'states  for  the  district  of  the  state 
of  Indiana,  on  the  20th   day  of  June,  1877, 
by  one  Thomas  Cofer,  who  was   the  as- 
signee in  bankruptcy  of  the  said   Jules  A. 
Viquesney,  the  said  \iquesiiey  having  prior 
thereto  been  duly  adjudged  a  bankrupt  by 
said  court  upon  proper  petition;  that  the 
said  Cofer  executed  to  him  a  deed   for  said 
real  estate,  which  was  duly  confirmed   by 
said   district  court:    that  he  is   also   the 
owner  of  said   real  estate,  and   holds  title 
thereto   by  virtue  of  a  sheriffs  deed   exe- 
cuted to   him   by  the  sheriff  of   Hendricks 
county,  Ind.,  on  the  2Sth  day  of  May,  1878, 
pursuant  to  a  sale  of  said   real  estate  in 
the  foreclosure  proceedings   on  the  Singer 
mortgage  setup  in  the  complaint.    This' 
answer  also  sets  up  the   mortgage  execut- 
ed  by  Viquesney  to  Tracy  and   Bingham; 
alleges  the  foreclosure  of  the  same  in  the 
district  court  of  the  United  States  for  the 
district  of   Indiana;  and   the   payment  of 
the  sum  of  .$1,26.5.74  by  the  appellee,  in  sat- 
isfaction thereof,  to  protect  his  title.    The 
appellee    Shirley   also   filed     a   cross-com- 
plaint, in   which   he  sets  up   the   amount 
paid   at  the  sheriff's   sale  on    the  Singer 
mortgage,  and   the  amount  paid   to   dis- 
charge the  Tracy  and  Bingham  mortgage 
and  decree,  and  asked  to  be  allowed  there- 
for in  the  event  a  decree  was  entered   per- 
mitting the    appellant  to    redeem.      The 
court  overruled  the  demurrer  to  this   an- 
swer, and   the  appellant  excepted.     Upon 
issues  formed,  the  cause  was  tried   by  the 
court,  who  entered   a  finding   and    decree 
that  the  appellant  was  entitled  to  redeem 
the    property  covered    by   the  Robinson 
mortgage  upon   payment  to  the  appellee 
Shirley  of  the  sum  of  $3,992. 

The  appellant  filed  a  motion  for  a  new 
trial,  which  was  overruled,  and  she  except- 
ed. The  errors  assigned  ave— First,  that 
the  court  erred  in  overruling  the  appel- 
lant's demurrrer  to  the  first  and  second 
paragraphs  of  the  answer  of  the  appellee 
Shirley;  second,  that  the  court  erred  in 
overruling  the  appellant's  demurrer  to  the 
third  i)aragraph  of  the  answer  of  Shirley; 
third,  that  the  court  erred  in  overruling 
the  appellant's  motion  for  a  new  trial. 

As  the  appellant  does  not  discuss  the 
first  assignment  of  error,  the  same  may  be 
regarded  as  waived. 

The  first  objection  urged  against  the 
third  paragraph  of  the  answer  is  that  it 
attempts  to  answer  the  whole  complaint, 
and  that  it  can,  at  most,  amount  to  an 
answer  to  so  much  of  the  comi)laint  as 
seeks  to  require  the  appellee  Shirley  to  ac- 
count for  rents  and  profits.  Counsel  is  in 
error  in  assuming  that  the  answer  at- 
tempts to  answer  the  whole  complaint. 
It  is  addressed  to  so  much  of  the  com- 
plaint only,  as  we  understand  the  plea,  as 
seeks  to  charge  th«»  appellee  with  the  rents 
and  profits  of  themortgaged  premises  dur- 
ing the  time  he  occupied  them.  The  ques- 
tion is  therefore  presented  as  to  whether 
the  answer  contains  facts  sutficient  to 
bar  the  appellant's  claim  for  rents  and 
profits  of  the  mortgaged  premises.  It  is 
believed  to  be  the  universal  rule,  in  all 
cases  where  the  mortgagee  takes  and  re- 
tains possession  of  the  mortgaged  prem- 
ises under  his  mortgage,  that  he  must  ac- 


160 


ESTATES  IN   HEAL   PROPERTY. 


count  for  the  rents  and  profits  received 
by  him  from  the  premises  while  he  holds  the 
same  under  his  mortgage.  2  Jones.Mort^. 
(4th  Ed.)  §  1114;  Troost  v.  Davis,  31  Ind. 
34;  Hannon  V.  Billiard, 83  Ind. 362;  Arnold 
V.  Cord,  16  Ind.  178;  Taylor  v.  Conner,  7 
Ind.  116. 

Such  rule,  in  the  absence  of  some  stat- 
ute upon  the  subject,  rests  upon  the  rea- 
sonable doctrine  that,  while  the  mortgagee 
is  the  holder  of  the  legal  title  to  the  mort- 
gaged premises,  he  holds  such  title,  never- 
theless, subject  to  the  equitable  right  of 
the  mortgagor  to  pay  the  debt,  and  thus 
destroy  or  put  at  an  end  his  legal  title, 
and  that  the  mortgagee  is  entitled  to  no 
more  than  his  debt,  which  the  mortgage 
was  intended  to  secure.  Hence  it  is  that, 
when  the  mortgagor  desires  to  redeem 
from  a  mortgagee  who  has  been  in  the 
possession  of  the  mortgaged  premises  un- 
der his  mortgage,  he  has  the  right,  in  a 
court  of  equity,  to  call  upon  the  mortga- 
gee to  account  forthe  amount  received  by 
way  of  rents  and  profits,  for  the  purpose  of 
determining  how  much,  if  anything,  is  re- 
quired in  order  to  discharge  the  mortgage 
debt.  This  doctrine  extends  to  cases 
where  there  has  been  an  attempt  to  sell 
the  premises  under  the  mortgage,  where 
such  sale  is  defective,  and  does  not  divest 
the  title  of  the  mortgagor.  Hannon  v. 
Hilliard,  supra.  This  right  to  compel  an 
accounting  for  rents  and  profits  extends, 
also,  to  a  junior  incumbrancer.  He  may 
compel  a  senior  mortgagee,  who  has  been 
in  possession  under  his  mortgage,  to  ac- 
count to  the  same  extent  and  in  the  same 
manner  as  the  mortgagor  might  compel 
an  accounting.  His  right  to  compel  such 
an  accounting  does  not  rest  upon  any  ob- 
ligation of  the  senior  mortgagee  to  him, 
for  there  is  no  contract  between  them,  but 
it  rests  upon  the  fact  that  the  senior  mort- 
gagee is  under  obligation  to  the  mortga- 
gor to  account;  and  that  by  reason  of  his 
junior  lien  he  has  the  right,  in  equity,  to 
stand  in  the  place  of  the  mortgagor,  and 
compel  the  a])plication  of  the  rents  and 
profits  to  the  satisfaction  of  the  senior 
mortgage.  The  junior  mortgagee  has  no 
riglit.  therefore,  to  compel  an  accounting 
when  the  mortgagor  has  no  such  right; 
for  it  is  through  the  mortgagor,  and  the 
equity  existing  between  him  and  the  se- 
nior mortgagee  that  he  is  enabled  to  com- 
pel an  application  of  the  rents  and  profits 
to  the  satisfaction  of  the  senior  mortgage. 
For  these  reasons  it  is  well  settled  that,  in 
order  to  charge  a  luortgagee  with  rents 
and  profits,  it  must  be  shown  that  he  has 
occupied  the  mortgaged  premises  under  his 
mortgage.  If  the  title  of  the  mortgagor 
has  been  divested,  and  the  mortgagee  has 
been  in  possession  under  a  title  derived 
from  the  mortgagor,  he  is  not  chargeable 
with  the  rents  and  profits  of  the  mort- 
gaged premises.  2  Jones,  Mortg.  (4th  Ed.) 
jS  1114-1120;  Daniel  v.  Coker,  70  Ala.  260; 
Hart  V.  Chase,  46  Conn.  207;  Van  Duyne 
V.  Shann,  41  N.  J.  Eq.  312,  7  Atl.  Kep.  429; 
Catterlin  v.  Armstrong,  79  Ind.  514,  101 
Ind.  258;  Johnson  v.  Hosford,  110  Ind.  579, 
10  N.  E.  Rep.  407,  and  12  N.  E.  Rep.  522; 
Renard  v.  Brown,  7  Neb.  449. 

In  the  case  of  Catterlin  v.  Armstrong,  79 
Ind.,  supra,  it  was  said  by  this  court  that 
"a  purchaser  at  afoi'eclosuresale,  defective 


because  a  junior  mortgagee  was  not  made 
a  party,  upon  a  subsequent  redemption 
by  the  latter,  must  account  forthe  rents 
and  profits,  if  such  sale  operates  merely  as 
an  assignment  of  the  first  mortgage.  But 
if  the  sale  operates  not  only  as  an  assign- 
ment of  a  prior  mortgage,  but  as  a  fore- 
closure of  the  equity  of  redemption,  subject 
to  the  junior  mortgage,  the  purchaser, 
standing  in  the  place  of  the  mortgagor  or 
owner  of  the  premises,  is  not  liable  to  ac- 
count for  the  rents  or  profits.  "  It  follows 
from  what  we  have  said,  and  from  the  au- 
thorities above  cited,  that  the  third  para- 
graph of  the  answer  of  the  appellee  Shirley 
was  suffiicient  to  bar  the  appellant's  com- 
plaint, in  so  far  as  it  sought  to  compel  the 
former  to  account  for  the  rents  and  profits 
of  the  mortgaged  premises.  It  discloses 
the  fact  that  the  title  of  the  mortgagor, 
Viquesney,  had  been  divested,  and  vested 
in  the  appellee  Shirley.  As  Shirley  held  in 
the  capacity  of  owner  of  the  premises,  and 
not  as  mortgagee,  he  was  not  liable  to  ac- 
count for  rents  and  profits.  The  case  of 
Murdock  v.  Ford,  17  Ind.  52,  is  in  seeming 
conflict  with  the  later  case  of  Catterlin  v. 
Armstrong,  supra.  In  so  far  as  it  seems 
to  hold  that  a  purchaser  at  a  foreclosure 
sale  which  divests  the  title  of  the  mortga- 
gor is  liable  for  rents  and  profits  to  a  ju- 
nior moi'tgagee,  the  same  is  disapproved. 
The  court  did  not  err  in  refusing  to  permit 
the  appellant  to  pi'ove  the  value  of  the 
rents  and  profits  of  the  mortgaged  prem- 
ises, as  it  was  admitted  on  the  trial  that 
the  title  of  the  mortgagor  had  been  ex- 
tinguished before  the  appellee  Shirley  took 
possession.  The  assignment  in  bankrupt- 
cy divested  his  title,  and  vested  it  in  the 
assignee,  who  by  his  deed  vested  it  in  Shii*- 
ley.  Nor  do  we  think  the  court  erred  in 
admitting  in  evidence  the  deed  executed  by 
the  assignee  in  bankruptcy  to  Shirley.  It 
tended  to  support  the  allegations  in  the 
appellee's  answer,  and  to  prove  that  Shir- 
ley was  in  possession  as  owner,  and  not  as 
mortgagee. 

It  is  earnestly  insisted,  however,  thatthe 
circuit  court  erred  in  fixing  the  amount 
to  be  paid  by  the  appellant  in  order  to  re- 
deem. It  is  insisted  tliat,  in  ascertaining 
the  amount  to  be  paid,  the  court  not  only 
allowed  the  amount  due  on  the  Singer 
mortgage  and  the  Tracy  and  Bingham 
mortgage,  but  that  it  allowed  also  the 
costs  made  in  tiie  foi-eclosure  of  both  said 
mortgages.  It  seems  to  be  too  well  set- 
tled to  admit  of  controversy  that,  where  a 
junior  mortgagee  desires  to  redeem  from 
a  sale  on  a  senior  mortgage,  he  may  do 
so,  where  he  was  not  made  a  party  to 
the  foi'eclosure  suit,  without  paying  the 
costs  of  such  suit.  Where  he  is  not  made 
a  party,  the  ftireclosure  is,  as  to  him,  a 
mere  nullity.  He  is  only  required  to  pay 
tlie  mortgage  debt,  with  interest.  Mc- 
Kernan  v.'Neff,  43  Ind.  503;  Hasselman  v. 
McKernan,  50  Ind.  441;  Hosford  v.  John- 
son, 74  Ind.  479;  Shirk  v.  Andrews,  92  Ind. 
510;  Curtis  v.  Gooding,  99  Ind.  46;  Daugh- 
ertv  V.  Deardorf,  107  Ind.  527,  8  N.  E. 
Rep.  296;  Nesbit  v.  Hanway,  87  Ind.  400. 

There  is  no  allegation  in  the  complaint 
in  this  case  as  to  the  amount  due  on  the 
Singer  mortgage,  nor  is  there  any  allega- 
tion as  to  the  amount  due  on  the  mortgage 
executed    to  Tracy   and   Bingham.     It  is 


ACCOUNTING. 


161 


somewhat  difficult  to  ascertain  from  the  ev- 
idence in  the  record  the  exact  amount  due 
on  these  senior  liens.  As  the  appellant 
desii'ed  to  redeem  by  the  payment  of  a 
sum  less  than  the  face  of  these  claims,  it 
was  her  duty  to  exhibit  to  the  court  try- 
inj?  the  cause  the  exact  state  of  the  ac- 
counts. However,  it  is  sufficient  to  say  in 
this  case  that  it  does  not  a]tpear  on  the 
face  of  the  record  before  us  that  the  costs 

GATES.R.P.— 11 


of  foreclosing  these  senior  liens  is  included 
in  the  amount  which  the  court  adjudged 
against  the  appellant  as  the  amount  nec- 
essary to  be  paid  for  the  redemption  of  the 
I  mortgaged  premises.  As  these  senior 
liens  drew  interest  at  the  rate  of  10  per 
cent,  per  annum,  it  was  proper  to  count 
interest  at  that  rate  to  the  date  of  the 
trial.  We  find  no  error  in  the  record. 
Judgment  affirmed. 


1G2 


ESTATES  IN  REAL   PROPERTY. 


WITHAM   T.  BROONER. 

v63  111.  344.) 

Supreme  Court  of  Illinois.     Jan.   'xerm,   1872. 

Appeal  from  circuit  court.  Mason  county; 
Charles  Turner,  Judge. 

Dearborn  &  Campbell,  for  appellant.  Lacey 
&  Wallace,  for  appellee. 

THORNTON,  J.  The  refusal  to  admit  in 
evidence  the  deed  to  Hallowbush  is  the  only  er- 
ror assigned. 

The  deed  was  executed  to  Hallowbush  "in 
trust  for  White  and  Smith."  The  trustee  had 
no  trusts  to  execute— no  duties  to  perform.  He 
was  a  mere  naked  trustee. 

One  of  the  cestuis  que  trust  had  executed  a 
deed  to  the  same  land  to  the  plaintiff  below, 
under  which  he  claimed  title. 

In  whom  was  the  legal  estate,  by  operation 
of  the  deed  to  Hallowbush — the  trustee  or  the 
cestuis  que  trust? 

Our  statute  is  a  substantial  re-enactment  of 
the  twenty-seventh  statute  of  Henry  VIII., 
usually  termed  the  "Statute  of  Uses."  Leav- 
ing out  some  of  the  verbiage,  it  enacts  that 
when  any  person  shall  be  seized  of  any  lands, 
to  the  use,  confidence  or  trust  of  any  other 
person,  by  any  bargain,  sale,  agreement  or  oth- 
erwise, in  such  case  all  persons  that  have  such 
use  or  trust  in  fee  simple  shall  be  seized,  deem- 
ed and  adjudged  in  lawful  seizin,  estate  and 
possession  of  and  in  the  same  land,  to  all  in- 
tents, in  law,  as  they  shall  have  in  the  use  or 
trust  of  and  in  the  same.  Rev.  St.  1845,  p.  103, 
§  3. 

The  clear  and  positive  language  of  the  stat- 
ute, aided  by  the  first  section  of  the  same  act, 
unmistakably  determines  the  question.  The 
person  having  the  use  shall  be  adjudged  to  be 
in  lawful  seizin,  estate  and  possession.  No  lan- 
guage could  more  aptly  stamp  the  character  of 
the  title. 

Livery  of  seizin  is  abolished  by  the  first  sec- 
tion of  the  conveyance  act,  and  the  title  is  there- 
by absolutely  vested  in  the  donee,  grantee,  bar- 
gainee, etc.,  independently  of  the  statute  of 
uses.  Hence,  under  this  statute,  a  deed  in  the 
form  of  a  bargain  and  sale  must  be  regarded  as 
having  the  force  and  effect  of  a  feoffment;  and 
under  the  statute  of  uses,  a  feoffment  to  A.,  for 
the  use  of  or  in  trust  for  B.,  would  pass  the 
legal  title  to  B.  In  a  deed  purely  of  bargain 
and  sale,  independently  of  the  first  section  of 
the  conveyance  act,  the  rule  would  be  different, 
and  the  title  would  vest  in  the  bargainee. 
Without  the  first  section,  the  legal  title  would 
be  in  Ihe  trustee,  in  this  case;  but  as  the  trust 
was  a  passive  one,  the  deed  operated  as  a 
feoffment  would  at  common  law,  and  vested  the 


legal  title  in  the  cestuis  que  trust,  by  virtue  of 
the  statute  of  uses.  Thus  the  statute  executes 
itself.  It  conveys  the  possession  to  the  use, 
and  transfers  the  use  to  the  possession;  and  by 
force  of  the  statute  the  cestuis  que  trust  had 
the  lawful  seizin,  estate  and  possession. 

The  three  things  necessary  to  bring  this  es- 
tate within  the  operation  of  the  statute  did  con- 
cur. There  was  a  person  seized  to  a  use;  a 
cestui  que  use;  and  a  use  in  esse.  The  use 
was  then  executed,  and  the  statute  operated. 
There  was  nothing  in  the  deed  to  prevent  the 
execution  of  the  use.  There  was  nothing  to  be 
done  by  the  trustee  to  make  it  necessary  that 
he  should  have  the  legal  estate.  There  was  to 
be  no  payment  of  rents  and  profits  to  another, 
or  debts,  or  taxes.  The  statute  operated  in- 
stantly and  vested  the  legal  estate  in  the  cestuis 
que  trustent. 

All  the  authorities  sustain  this  view. 

Blackstone  says  that  previous  to  the  enact- 
ment of  twenty-seventh  Henry  VIII.  abundance 
of  statutes  had  been  provided  which  tended  to 
consider  the  cestui  que  use  as  the  real  owner, 
and  that  this  idea  was  carried  into  full  effect 
by  the  twenty-seventh  Henry  VIII.,  called,  in 
conveyances  and  pleadings,  the  "Statute  for 
Transferring  Uses  into  Possession";  that  the 
statute  annihilated  the  intervening  estate  of 
the  feoffee,  and  changed  the  interest  of  the 
cestui  que  use  into  a  legal  instead  of  an  equita- 
ble ownership;  and  that  the  legal  estate  never 
vests  in  the  feoffee  for  a  moment,  but  is  instan- 
taneously transferred  to  the  cestui  que  use,  as 
soon  as  the  use  is  declared.  Bl.  Comm.  bk.  2, 
pp.  332,  333. 

Cruise,  in  his  Digest  of  the  Law  of  Real  Prop- 
erty (1  Greenl.  Ed.,  top  page  313,  §  34),  says 
when  the  three  circumstances  concur,  necessary 
to  the  execution  of  a  use,  "the  possession  and 
legal  estate  of  the  lands  out  of  which  the  use 
was  created  are  immediately  taken  from  the 
feoffee  to  uses,  and  transferred,  by  the  mere 
force  of  the  statute,  to  the  cestui  que  use.  And 
the  seizin  and  possession  thus  transferred  is 
not  a  seizin  and  possession  in  law  only,  but 
are  actual  seizin  and  possession  in  fact — not  a 
mere  title  to  enter  upon  the  land,  but  an  actual 
estate."  See,  also,  Smith,  Real  &  Pers.  Prop. 
155;  1  Land  Uses,  119;  2  Washb.  Real  Prop. 
(1st  Ed.)  120;  4  Kent,  Comm.  288  et  seq.; 
Webster  v.  Cooper,  14  How.  488;  Barker  v. 
Keat,  2  Mod.  250. 

We  are  of  opinion  that  the  legal  estate  was 
in  the  cestui  que  trust,  and  that  the  rejected 
deed  was  admissible. 

The  cases  referred  to  in  this  court  are  not 
in  conflict  with  our  conclusion. 

The  judgment  is  reversed  and  the  cause  re- 
manded. 

Judgment  reversed. 


USE  UPON  A  USE. 


163 


JACKSON  ex  dom.  WHITE  v.  GARY. 

(16  Jolms.  302.) 
Supreme  Court  of  New  York.     May,  1819. 

*rhis  was  an  action  of  ejectment  brought  to 
recover  an  undivided  eighth  part  of  about  six 
thousand  acres  of  land  in  the  county  of  Otsego. 
The  cause  was  tried  before  Mr.  J.  Piatt,  at  the 
Otsego  circuit,  in  June,  1818. 

The  premises  in  question  were  part  of  a  pat- 
ent granted  to  George  Groghan,  and  ninety- 
nine  others,  for  100,000  acres  of  land.  The  oth- 
er proprietors  released  to  Croghan,  who,  by 
deed  dated  March  2,  1770,  conveyed  the  prem- 
ises to  Augustine  Prevost;  and  Augustine  Pre- 
vost  and  wife,  by  deed  dated  June  29,  1771, 
conveyed  the  same  to  Cornelius  P.  Low,  who 
died  about  the  year  1791,  leaving  the  defend- 
ant his  only  child  and  heir  at  law. 

The  plaintiff  founded  his  claim  upon  a  deed 
dated  the  20th  of  October,  1790,  from  Helena 
Kip,  widow,  and  sole  devisee  of  Henry  Kip,  de- 
ceased, and  Henry  H.  Kip,  to  Richard  Gary 
the  elder,  and  the  defendant  Ann,  his  wife. 
This  deed  was  expressed  to  be  given  for  the 
consideration  of  £425,  and  granted  to  the  par- 
ties of  the  second  part,  (being  in  their  posses- 
sion by  virtue  of  a  bargain  and  sale  bearing 
date  the  day  before,  and  by  force  of  the  statute, 
etc.,)  a  tract  of  6,060  acres  formerly  conveyed 
by  G.  Croghan  to  A.  Prevost,  and  lately  con- 
veyed by  the  sheriff  of  Montgomery  to  Henry 
Kip,  deceased,  and  Henry  H.  Kip,  to  have  and 
to  hold  the  same  unto  the  said  parties  of  the 
.second  part,  their  heirs  and  assigns,  to  the  only 
proper  use  and  behoof  of  the  said  parties  of  the 
.second  part,  their  heirs  and  assigns:  "In  trust, 
nevertheless,  to  and  for  the  only  proper  use  of 
the  heirs  of  him,  the  said  Richard  Gary,  party 
hereto,  on  the  body  of  her  the  said  Ann,  the 
wife  of  the  said  Richard  Gary,  for  ever,  wheth- 
er the  same  are  already  begotten  or  to  be  be- 
gotten; provided  always,  and  this  trust  is  up- 
on this  condition,  nevertheless,  that  it  shall  and 
may  be  lawful  to  and  for  the  said  Richard  Gary 
and  Ann  Gary  to  grant,  bargain,  sell,  alien,  re- 
lease, and  convey  unto  Edward  Hurtin,  of  Ston- 
ington,  in  Connecticut,  his  heirs  and  assigns,  a 
farm  containing  300  acres  of  land,  &c.,  and  also 
to  let  out  in  leases,  renewable  from  time  to 
time,  or  to  grant,  bargain,  sell,  alien,  release, 
and  convey  in  fee  simple,  by  mortgage,  or  oth- 
erwise, to  any  person  or  persons,  a  quantity  of 
the  above  released  premises,  not  exceeding  3,000 
acres  of  land,  including  the  aforesaid  and  de- 
scribed farm  of  300  acres  of  land,  and  out  of 
such  sale  or  sales  to  pay  and  retain  to  their 
own  use  the  sum  of  £425  lawful  money  afore- 
said, the  consideration  money  above  mentioned, 
paid  by  them  out  of  their  own  proper  money, 
and  the  interest  thereof,  together  with  all  costs 
and  charges,  as  may  arise  or  happen,  by  reason 
or  means  of  such  sale  or  sales;  and  the  over- 
plus money  to  have  and  to  hold  in  trust,  to  and 
for  the  use  of  their  heirs,  as  before  limited  and 
expressed." 

Richard  Gary,  the  grantee,  came  on  the  prem- 
-ises  as  early  as  the  year  1790  or  1791,  and  with- 


in one  or  two  years  afterwards,  removed  his 
family  there,  and  continued  to  occupy  the  prem- 
ises until  his  death,  which  happened  ten  or 
twelve  years  before  the  trial,  and  the  defendant 
has  ever  since  remained  in  possession.  Gary 
the  elder,  the  grantee  in  the  last  mentioned 
deed,  left  Richard  Gary,  the  younger,  and  seven 
other  children;  and  Richard  Gary,  the  younger, 
by  deed  dated  the  14th  of  April,  1809,  con- 
veyed to  the  plaintiff's  lessor  and  one  Seelye,  ali 
his  right  and  interest,  being  one  eighth  part 
of  the  premises  in  question.  In  May,  1810, 
Seelye  released  all  his  interest  to  the  lessor  of 
the  plaintiff. 

A  witness  testified,  that  both  before  and  after 
the  deed  from  R.  Gary,  the  younger,  he  had 
many  conversations  with  the  defendant  in  rela- 
tion to  the  interest,  and  the  interest  of  her  chil- 
dren in  the  premises,  and  in  relation  to  the  ti- 
tle; that  in  all  these  conversations  the  defend- 
ant never  pretended  that  she  had  any  other  in- 
terest or  title  than  what  was  given  by  the  deed 
from  Helena  and  Henry  H.  Kip;  and  that, 
by  the  legal  construction  of  that  deed,  she  sup- 
posed that  she  had  a  life  estate  in  the  premises 
and  nothing  more.  The  witness  stated,  that 
the  reason  of  his  inquiring  into  the  title  to  the 
premises  was,  that  he  had  been  engaged  in  ne- 
gotiating a  purchase  of  some  of  the  rights  of 
the  children  of  R.  Gary  the  elder,  in  the  prop- 
erty; that  his  conversations  with  the  defendant 
were  had  in  reference  to  the  contemplated  pur- 
chase, and  that  in  all  these  conversations  the 
defendant  admitted  the  right  of  the  children  to 
sell,  when  of  age,  subject  to  the  life  estate, 
which  she  claimed  under  the  deed  from  the 
Kips. 

A  verdict  was  found  for  the  plaintiff,  subject 
to  the  opinion  of  the  court,  on  a  case  which 
was  submitted  to  the  court  without  argument. 

SPENCER,  C.  J.  The  first  objection  to  the 
deed  from  the  Kips  is,  that  it  is  a  deed  of  bar- 
gain and  sale,  and  that  upon  such  a  deed  a 
use  cannot  be  limited  to  any  other  person  than 
the  bargainee.  This  court  adopted  and  recog- 
nized that  principle,  in  Jackson  v.  Myers,  3 
Johns.  396.  Sanders,  in  his  Treatise  on  Uses 
and  Trusts,  gives  this  question  a  very  full  dis- 
cussion. He  says  (page  315):  "That  the  na- 
ture of  the  estate  since  the  statute  is  the  same 
as  it  was  before;  that  the  bargainee  is  still  but 
a  cestui  que  use,  and  though  he  has  a  legal,  in- 
stead of  a  fiduciary  estate,  since  the  statute, 
yet,  that  legal  estate  is  made  such  by  force  of 
the  statute  of  uses,  and  not  according  to  the 
rules  of  the  common  law.  Upon  this  principle, 
it  has  been  held,  and  is  now  established,  that 
no  use  can  be  limited  to  arise  out  of  the  estate 
of  the  bargainee  to  a  third  person,  for  that 
would  be  to  limit  a  use  to  arise  upon  a  use. 
Therefore,  if  A.  bargains  and  sells  in  fee  to  C., 
to  the  use  of  A.,  (the  bargainor.)  or  to  any  other 
person,  for  life,  or  in  fee,  this  limitation  to  the 
use  is  void.  But  though  this  declaration  of  the 
use  is  void  as  a  use,  yet  it  has  been  a  question, 
whether  it  would  not  be  supported  as  a  trust,  in 
chancery."     And  he  apprehends  it  would  be  sup- 


164 


ESTATES  IN  REAL   PROPERTY. 


ported  in  that  court.  Shepherd,  in  his  Touch- 
stone (505-507),  holds  the  same  doctrine.  He 
observes,  that  if  one  seised  of  land  in  fee,  bar- 
gain and  sell  it,  or  make  a  lease  of  it,  to  an- 
other in  trust,  or  for  the  benefit  of  a  third  per- 
son, this  is  but  a  chancery  trust,  in  this  third 
person,  as  was  clearly  held  in  8  Car.  B.  R.; 
and  he  proceeds  to  show  that  a  fine,  feoffment, 
or  recovery,  may  be  had  of  land,  to  the  use  and 
intent,  that  either  the  parties  thereto,  or  others, 
ehall  have  it  for  any  time  or  estate.  Cruise  (ti- 
tle 12,  c.  2,  §§  11,  12,  24)  confirms  the  positions 
of  Shepherd  and  Sanders;  and,  indeed,  there 
is  no  case  to  the  contrary.  This  doctrine  re- 
ceives full  and  complete  confirmation  from  the 
observations  of  Lord  Hardwicke  in  Hopkins  v. 
Hopkins,  1  Atk.  591. 

■  The  legal  estate,  therefore,  was  in  Gary  and 
wife,  under  the  deed  from  the  Kips;  and  it  is 
the  settled  doctrine  of  this  court,  that  we  look 
only  to  the  legal  estate  in  an  action  of  eject- 
ment, disregarding  the  equitable  interest.  8 
Johns.  488,  and  the  cases  there  cited, 

Mrs.  Cary  having  survived  her  husband,  and 
the  estate  granted  to  them  being  neither  in 
joint-tenancy  nor  tenancy  in  common,  and  so 
not  affected  by  the  statute,  she,  as  survivor, 
takes  the  whole  legal  estate.  This  point  was 
decided  at  the  last  term,  in  Jackson  v.  Stevens, 
16  Johns.  110. 

Independently    of    these    considerations,    the 


case  shows  that  the  defendant  deduced  a  legal 
title  to  himself,  as  the  heir  of  Cornelius  P.  Low,, 
who,  it  was  proved,  acquired  a  complete  title 
to  the  premises  under  the  original  patentee; 
pud,  most  certainly,  she  was  not  concluded  by 
the  deed  from  the  Kips,  from  asserting  her  ti- 
tle. Without  stopping,  therefore,  to  inquire 
whether,  under  any  circumstances,  the  lessor  of 
the  plaintiff  could  avail  himself  of  that  deed,  as 
an  estoppel,  which  I  am  clearly  of  opinion  he 
could  not,  the  defendant  never  could  be  estopiied 
l)y  it,  as  she  was  a  feme  covert  when  it  was 
given. 

The  evidence  of  declarations  made  by  the  de- 
fendant avail  nothing,  for  although  parol  dec- 
larations of  tenancy  have  been  received,  with 
certain  qualifications,  parol  proof  has  never  yet 
been  admitted  to  destroy  or  take  away  a  title. 
To  allow  parol  evidence  to  have  that  effect, 
would  be  introducing  a  new  and  most  danger- 
ous species  of  evidence.  The  statute  to  pre- 
vent frauds  and  perjuries,  which  has  been  con- 
sidered the  Magna  Charta  of  real  property, 
avoids  all  estates  created  by  parol,  and  all  dec- 
larations of  trust,  excepting  resulting  trusts,  re- 
garding any  lands,  tenements,  or  hereditaments. 
Yet,  in  defiance  of  this  statute,  we  are  asked  to 
devest  the  defendant  of  what  appears  to  be  a 
complete  title  to  the  premises,  by  her  parol  dec- 
larations.    This  cannot  be  listened  to. 

Judgment  for  the  defendant. 


EXPRESS  TRUST. 


165 


EIPPER  et  al.  v.  BEXXER. 

(71  N.  W.  511.) 

Supreme  Court  of  Michigan.     May  25,  1897. 

EiTor  to  circuit  court,  Calhoun  county;  Clem- 
ent Smith,  Judge. 

Claim  by  ^Slaiy  Eipper  and  Julius  Nagel 
against  the  estate  of  Chris  Fred  Yogel,  which 
was  allowed  by  the  probate  judge,  acting  as  1 
commissioner,  and  Maiy  E.  Benner,  adminis-  I 
tratrix  of  said  estate,  appealed  to  the  circuit  ; 
court.  There  was  a  judgment  disallowing  the  1 
claim,  and  claimants  bring  error.     Reversed,   j 

Herbert  E.  Winsor,  for  appellants.  John  E. 
Foley,  for  appellee.  j 

HOOKER,  J.  In  a  proceeding  before  the 
probate  judge  of  Calhoun  county,  acting  as 
commissioner,  the  claim  of  the  claimants  was 
allowed.  Upon  appeal  the  circuit  judge  re- 
versed the  case,  and  disallowed  the  claim. 
His  finding  states  the  facts,  and  is  given  in 
full: 

"(1)  Claimants  are  nephew  and  niece  of 
Mary  Vogel,  who  was  the  wife  of  Chris  Fred 
Vogel,  deceased.  Julius  was  bom  in  May, 
18G6,  and  his  sister,  Mary,  is  about  two  years 
younger.  They  are  the  children  of  a  deceased 
brother  of  Mary  Vogel,  and  were  left  orphans 
in  the  state  of  Mississippi,  but  at  what  time 
is  not  disclosed  by  the  proof,  but  at  a  time 
prior  to  their  coming  into  the  family  of  Chris 
Fred  Vogel.  Maiy  Vogel  learned  of  the  death 
of  her  sister,  and  that  these  children  were 
orphans,  and  took  steps  to  find  them,  and 
bring  them  North,  into  her  family,  and  did 
find  them,  and  they  lived  in  the  family  of  her- 
self and  husband  about  six  (6)  years  before 
her  death. 

"(2)  Claimants  have  no  property,  and  Mr. 
and  Mrs.  Vogel  were  at  some  expense  in  find- 
ing them  and  removing  them  to  their  home. 

"(3)  They  were  cared  for  and  looked  after 
by  the  Vogels  as  members  of  the  family  from 
the  time  they  came  into  the  family,  worked 
out  part  of  the  time,  and  attended  school,  but 
not  to  any  great  extent. 

"(4)  At  the  time  of  the  marriage  of  Mr.  and 
Mrs.  Vogel  he  was  a  widower  with  one  child, 
who  is  now  living,  and  in  whose  interest  this 
claim  is  contested.  Mrs.  Vogel  was  a  widow 
without  children,  and  died  childless. 

"(5)  At  the  time  of  the  marriage,  Mrs.  Vo- 
gel had  several  hundred  dollars  of  property  in 
her  own  right,  consisting  of  moneys  out  at 
interest,  and  houses  and  lots,  in  Coldwater, 
Michigan,  where  she  lived.  Mr.  Vogel  had 
some  property,  and  they  accumulated  some  by 
their  labor,  and  in  the  management  of  what 
they  had.  They  used  their  property  for  the 
joint  interest  of  both  in  the  cai-e  of  the  family, 
but  investments  were  made  in  the  name  of 
Mr.  Vogel. 

"(6)  Mrs.  Vogel  died  April  21,  1887,  and 
Gottleib  Kast  was  appointed  her  administra- 
tor, and  proceeded  to  settle  up  her  estate.  It 
was   appraised  at  the  sum   of   one   thousand 


eight  hundred  and  eighteen  ($1,818)  dollars, 
and  consisted  principally  of  real  estate  owned 
by  her  at  the  time  of  her  marriage.  The  es- 
tate was  duly  closed  in  probate  court,  and  dis- 
tributed to  her  legal  heirs,  under  an  order  of 
distribution  made  by  Hon.  Geo.  Ingersoll, 
Judge  of  Probate. 

"(7)  The  heirs  at  law  of  Mary  Vogel  were 
those  claimants,  children  of  a  deceased  l)roth- 
er,  Michael  Xagel,  a  brother,  a  brother  in  Ger- 
many, a  brother  in  Ohio,  and  eight  or  nine 
children,  who  were  the  children  of  a  deceased 
sister  in  Germany. 

"(8)  A  day  or  two  after  her  death  her  broth- 
er, Michael  Nagel,  talked  with  Mr.  Vogel 
about  the  property  of  his  wife  and  the  rela- 
tions pertaining  to  the  same  as  between  Mr. 
and  Mrs.  Vogel.  It  is  claimed  that  this  talk 
was  in  the  interest  of  claimants.  Claimants 
knew  nothing  of  the  talk,  and  had  no  part  in 
it.  Michael  was  not  their  legally  appointed 
guardian,  nor  was  he  in  any  way  authorized 
by  them,  or  by  any  one,  to  make  any  arrange- 
ment regarding  their  interest  in  the  estate  of 
Mrs.  Vogel,  but  acted  entirely  of  his  own  mo- 
tives. 

"(9)  In  pursuance  of  this  talk,  and  before 
Michael  went  home,  the  parties  went  to  the 
probate  court,  and  Judge  Ingersoll,  the  pro- 
bate judge  of  Calhoun  county,  prepared  a  pa- 
per, which  Mr.  Vogel  signed,  and  which  was 
in  words  and  figures  as  follows: 

"  'Exhibit  A.  Memoranda  of  unsettled  mat- 
ters between  Chris  Fred  Vogel  and  the  estate 
of  Mary  M.  Vogel,  his  wife,  as  follows:  Said 
Chris  Fred  Vogel  has  heretofore  received  from 
said  Mary  M.  Vogel  the  following  sums  of 
money,  to  wit: 

One  sum  of  three  hundred  dollars . .  .  ($    300.00) 

One  sum  of  three  hundred  and  fifty 
dollars (      350.00) 

One  sum  of  three  hundred  and  seven- 
ty-five     (      375.00) 

And  one  sum  of  fourteen  hundred  dol- 
lars  (  1,400.00) 

Amounting  in  all  to  t^^enty-four  hun- 
dred and  twenty-five  dollars ($2,425.00) 

—And  out  of  which  he  paid  at  the  request  of 
said  Mary  M.  Vogel  one  hundred  dollars  for 
the  benefit  of  Gottleib  Grimmer,  and  wliich 
leaves  a  balance  of  twenty-three  hundred  and 
twenty-five  doUars  ($2,325.00),  and  which 
amount  I  agree,  in  pursuance  of  my  under- 
standing -with  my  said  wife,  to  bequeath  by 
my  will  to  Julius  Nagel  and  Maggie  Nagel, 
minors,  now  members  of  the  family  of  Chris 
Fred  Vogel.  Dated,  Marshall,  April  27th, 
1887.  Chris  Fred  Vogel.  In  presence  of 
George   Ingersoll.' 

"This  paper  was  left  with  Judge  Ingersoll, 
and  remained  with  him  till  after  the  death  of 
Ml'.  Vogel. 

"(10)  January  31,  1889,  Chris  Fred  Vogel, 
on  petition  of  Julius  Nagel,  and  while  Mr. 
Kast  was  acting  as  administrator  of  Mrs.  Vo- 
gel's  estate,  was  cited  into  probate  court  to  tes- 
tify as  to  the  property  he  had  belonging  to  his 
deceased  wife's  estate.    This  examination  was 


166 


ESTATES   IN   REAL  PROPEnTY. 


jn  writing  before  the  judge  of  probate,  and 
was  conducted  by  Hon.  John  C.  Patterson, 
who  represented  Mr.  Nagel.  In  this  exam- 
ination he  denied  owing  his  wife  anything. 
He  admitted  he  had  considerable  money,  and 
in  fact  the  amounts  set  forth  in  the  memo- 
randum, out  claimed  it  had  been  paid  out  in 
various  ways  at  her  request.  He  also  denied 
to  Mr.  Kast,  while  he  was  the  administrator 
of  Mrs.  Vogel's  estate,  any  liability  to  her  es- 
tate or  to  claimants. 

"(11)  In  December,  1894,  Mr.  Vogel  made  a 
will,  in  which  Julius  and  Mary,  these  claim- 
ants, were  remembered  substantially  as  was 
set  forth  they  should  be  in  the  memorandum 
made  by  Judge  Ingersoll.  The  contents  of 
this  will  rest  somewhat  in  memory  and  hear- 
say, and,  while  not  in  the  exact  terms  of  the 
memorandum,  were  as  favorable  to  them  as 
the  terms  of  it  would  have  been. 

"(12)  This  will  was  destroyed  some  time 
after  its  execution,  and  was  not  in  existence 
at  the  death  of  Mr.  Vogel." 

"(13)  Mr.  Vogel  died  July  13,  1895,  without 
a  will,  leaving  as  his  only  heir  his  daughter, 
Elizabeth.  Administration  was  granted  to  his 
daughter.  His  property  was  appraised  at  six 
thousand  five  hundred  and  ninety-seven  dol- 
lars ($6,597.00), 

"(14)  Claimants  file  a  claim  against  his 
estate  which  was  the  memorandum  set  forth 
in  the  ninth  finding  of  fact  herein,  and  to 
which  was  attached  the  following:  'Marshall, 
Mich.,  Nov.  13,  1895.  Estate  of  Chris  Fred 
Vogel,  Dr.,  to  Julius  Nagel  and  Mary  Nagel 
Eipper,  To  the  above  claim,  $2,125.00.  In- 
terest to  date  if  allowed.' 

"Law. 
"Claimants  have  no  legal  claim  against  the 
estate  of  Chris  Fred  Vogel,  and  cannot  re- 
cover. It  should  be  certified  back  to  the  pro- 
bate court  for  Calhoun  county  that  this  claim 
is  disallowed,  with  costs  to  be  taxed. 
"Dated  August  15th,  1896. 

"Clement  Smith,  Circuit  Judge." 

The  only  question  that  seems  to  be  raised  by 
the  brief  of  appellants  goes  to  the  merits, — 
can  the  order  be  sustained  upon  the  finding  of 
fact?  The  finding  conclusively  shows  that 
Chris  Fred  Vogel  unqualifiedly  admitted  in  a 
most  solemn  manner  that  he  had  money  be- 
longing to  his  wife  to  the  amount  of  $2,425, 


and  that  he  had  an  understanding  with  his 
wife,  before  her  death,  that  he  was  to  be- 
queath it  to  the  claimants,  who  were  her 
nephew  and  niece.  Not  only  does  it  api>ear 
that  he  admitted  that  he  made  this  promise, 
but  that  he  made  the  writing  in  which  the  ad- 
mission appears  as  a  means  of  avoiding  an 
accounting  for  this  property  belonging  to  his 
wife  at  a  time  when  her  brother,  one  of  her 
heirs,  required  it,  as  a  condition  that  the  heirs 
should  not  compel  such  accounting;  and  it  was 
shown  that  he  made  a*  will  substantially  in 
accordance  with  his  admitted  promise,  which 
was  destroyed  some  time  after  its  execution, 
and  before  his  death.  The  circuit  judge  was 
of  the  opinion  that  the  admission  of  an  "un- 
derstanding" with  his  wife  was  not  the  ad- 
mission of  a  promise,  and  that,  if  it  can  be  said 
to  amount  to  a  promise,  it  was  not  based  upon 
a  consideration,  because  neither  Mr.  nor  Mrs. 
Vogel  was  under  any  obligation  to  the  claim- 
ants which  would  amount  to  a  valid  consid- 
eration. It  is  clear  that  the  judge  found  that 
Vogel  admitted  that  he  had  the  sum  claimed 
of  his  wife's  property,  and  that  he  had  prom- 
ised her  to  leave  it  to  these  children  at  his 
death.  We  are  of  the  opinion  that  the  facts 
foimd  show  that  Vogel  held  this  money  in 
trust  for  these  children  by  arrangement  with 
his  wife,  and  after  his  death  it  was  the  duty 
of  the  administrator  to  pay  it  over  to  them, 
upon  allowance  by  the  probate  court.  People 
V.  Wayne  Circuit  Court,  11  Mich.  404;  Wheel- 
er V.  Arnold,  30  Mich.  304;  Nester  v.  Ross' 
Estate,  98  Mich.  200,  57  N.  W.  122;  Frank 
V.  Morley's  Estate  (Mich.)  64  N.  W.  577. 
This  trust,  though  it  be  said  that  it  rested  in 
parol,  was  admitted  in  writing,  which  was 
suflicient  to  satisfy  the  statute  of  frauds.  Pat- 
ton  V.  Chamberlain,  44  Mich.  5,  5  N.  W.  1037. 
But  it  would  seem  that  the  statute  of  frauds 
has  no  application,  inasmuch  as  the  trust  fund 
was  personalty.  Bostwick  v.  Mahaffy,  48 
Mich.  342,  12  N.  W.  192;  Calder  v.  Moran,  49 
Mich.  14,  12  N.  W.  892;  Chadwick  v.  Chad- 
wick,  59  Mich.  87,  26  N.  W.  288;  Bowker  v. 
Johnson,  17  Mich.  42;  Penny  v.  Croul,  76 
Mich.  471,  43  N.  W.  649.  The  order  of  the 
circuit  judge  is  reversed,  and  that  of  the  pro- 
bate court  afl3rmed,  with  costs  of  both  courts 
to  the  claimants  against  the  estate.  It  will  be 
so  certified  to  the  circuit  and  probate  coui'ts. 
The  other  justices  concurred. 


EXPRESS  TRUST. 


167 


HAMILTON  V.  HALL'S  ESTATE. 

(69  N.  W.  484.) 
Supreme  Court  of  Michigan.    Dec.  24,  1896. 

Error  to  circuit  court,  TVaj-ne  county; 
George  S.  Hosmer,  Judge. 

Claim  by  Sarah  M.  Hamilton  against  the 
estate  of  Salina  J.  Hall,  tleceased.  Judgment 
for  defendant,  and  claimant  brings  error. 
Affirmed. 

Bowen,  Douglas  &  Whiting,  for  appellant. 
Conely  &  Taylor,  for  appellee. 


LONG,  C.  J.  The  claimant  presented  to 
the  commissioners  on  claims  in  the  Wayne 
circuit  court  a  claim  against  the  estate  of 
the  deceased  for  the  sum  of  §1,000  and  in- 
terest thereon  at  the  rate  of  7  per  cent,  per 
annum  from  May  13,  1S!X>,  less  certain  cred- 
its. This  claim  was  disallowed  by  the  com- 
missioners, and  an  appeal  was  taken  to  the 
circuit  court  for  Wayne  county,  where  the 
court  directed  verdict  in  favor  of  the  estate. 
It  appears  that  Reuben  H.  Hall  died  tes- 
tate in  the  city  of  Detroit,  May  13,  1890,  leav- 
ing all  bis  property  to  his  wife,  Salina  J. 
Hall,  against  whose  estate  the  claim  in  con- 
troversy is  presented.  He  had  no  children. 
Before  his  death  he  told  his  wife  to  give  to 
his  sister,  the  claimant  here,  the  sum  of  $1,- 
000.  It  is  contended  by  the  claimant  that, 
after  the  death  of  Reuben  H.  Hall,  his  wid- 
ow said  she  would  follow  her  husband's  wish- 
es, and  give  the  claimant  ?1,000  out  of  the 
estate;  that  thereafter  Salina  J.  Hall  treat- 
ed the  $1,000  as  belonging  to  the  claimant; 
and  that  thereby  a  trust  was  created  in  favor 
of  claimant,  which  can  now  be  enforced 
against  said  estate.  In  order  to  determine 
that  question,  it  is  necessary  that  some  of 
the  testimony  given  upon  the  trial  be  set 
forth.  Mr.  Houston  testified  that  Salina  J. 
Hall,  In  her  lifetime,  said  to  him  that  her 
husband  told  her.  before  his  death,  to  give 
his  sister,  Mrs.  Hamilton,  $1,000  out  of  his 
estate.  Witness  stated:  That  he  had  loan- 
ed money  for  Mrs.  Hall,  and  collected  inter- 
est on  it  when  due.  That  deceased  had  con- 
siderable property,  acquiring  the  greater  por- 
tion of  it  from  her  husband.  That  at  cer- 
tain times  she  told  him  to  pay  claimant  mon- 
ey as  interest  on  $1,000.  That  -she  said  she 
would  pay  interest  on  the  money  while  she 
kept  it,  and  that,  at  different  times,  she  di- 
rected him  to  pay  claimant  money  for  her. 
That  in  August,  1890,  he  paid  claimant,  for 
deceased.  $50;  in  November,  1891,  $25;  Sep- 
tember. 1891,  $50;  June,  1892,  $25;  August, 
1892,  $20;  jNIay,  1893,  $50;  July  21,  1893, 
$25;  July,  1894,  $10;  July,  1894,  $40;  and 
December,  1894,  $25.  That  he  made  these 
payments  out  of  Interest  on  moneys  that  he 
had  collected  upon  loans  made  for  the  de- 
ceased, and  the  payments  were  made  with 
tbe  knowledge  of  the  deceased  and  by  her 
instructions.    The  witness  was  asked  to  state 


whether  Mrs.  Hall  ever  said  anything  in  re- 
gard to  why  she  did  not  give  the  whole  $1,- 
000  to    claimant    immediately,   and    stated: 
"She  said  she  wanted  Mrs.  Hamilton  to  have 
this  money  for  her  own  benefit.    She  thought 
her  husl)and  owed  on  his  farm,  and,  if  she 
gave  her  the  $1,000,  he  would  turn  the  mon- 
ey in  in  payment  of  his  farm."    Counsel  then 
put  in  evidence  a  letter  addressed  to  Mrs. 
Hamilton  from  Mrs.  Hall,  under  date  of  De- 
cember 16,  1894,  as  follows:    "Dear  Sister: 
Please  explain  so  I  can  send  my  dues  first 
January,    whatever   they   are.     I   send   you 
check  for  $25,  and  I  hope  it  will  reach  you  in 
good  season  and  all  right.    Would  have  sent 
it  before,  but  was  so  busy  for  several  days 
before  auntie  went  away  I  didn't  do  anything 
only  what  I  had  to.     Wish  j-ou  would  send 
me  a  statement  of  what  you  have  had,  so  I 
can  see  if  it  tallies  with  mine."    Mary  Brin- 
ing was  called  as  a  witness,  and  stated  that 
deceased  told  her  she  was  to  pay  Mrs.  Ham- 
ilton $1,000;    that  she  didn't  have  the  mon- 
ey then,  but  would  pay  her  just  as  soon  as 
she   could   make   arrangements    and    get    it. 
Witness  said:   "I  think  she  was  paying  inter- 
est, and  that  she  said  she  would  pay  her  that 
money  just  as  soon  as  she  could  get  around 
to  it."     Mabel  Loomis  also  testified  as  fol- 
lows:   "She  said   Mr.   Hall  told  her  to  give 
Mrs.   Hamilton  $1,000,  and  that  she   would 
give   it   to   her  as   soon   as   she   could,   and 
would  give  her  the  interest  on  it  until  she 
did  give  it  to  her.     She  said  that  was  Mr. 
Hall's    wish."     John   W.    O'Keefe   testified: 
"Well,  she  said  there  was  no  particular  time 
that  she  was  obliged  to  give  it  to  her,  only 
she  was  going  to  give  it  to  her  just  as  she 
saw   fit.— saw    that    she    could;    that   Mrs. 
Hamilton  wanted  her  to  give  it  to  her  all  at 
once,   but  she   would   not  do  that,   but  she 
wanted  to  give  it  to  her  in  small  payments 
along,  so  that  Mrs.  Hamilton  would  use  it 
for  her  own  personal  use.    *    *    *    She  said 
she   was   going   to  pay   her  interest   on   it." 
Mary  K.  West  testified  about  a  talk  she  had 
with  Mrs.   Hall,   in  which  she  stated:    "He 
wanted  her  to  give  Mrs.  Hamilton  a  certain 
sum  of  money.     She  did  not  say  to  me  how 
much.     She  says:    'I  am  going  to  give  Sade 
$1,000,  but  I  am  not  going  to  give  it  to  her 
right  away,  because  Mr.  Hall  didn't  want  me 
to  cramp  myself;   but  I  shall  pay  her  interest 
until  I  get  around  to  pay  it  to  her.'  "     The 
witness  further  testified  to  certain  goods  that 
were  bought  by  Mrs.  Hall  and  sent  to  Mrs. 
Hamilton,   and   said  that  Mrs.   Hall  said  to 
her:    "Tliis   is   to   be   applied   on   interest." 
The  witness,   speaking  of  another  occasion, 
when  she  had  a  conversation  with  the  de- 
ceased, said  that  Mrs.  Hall  told  her  that  she 
had  $1,000  coming  to  her,  and  she  believed, 
when  she  got  it,  she  would  give  Sade  $500  of 
it  for  her  next  birthday.     The  witness,  con- 
tinuing, says:    "And  she  says:  'What  do  you 
think  about  it?'     I  says:    'Well,  if  you  have 
got  to  pay,  I  would  get  it  off  my  hands,  and 
be  done  with  it.    You  are  paying  interest  on 


168 


ESTATES  IN   KEAL  PROPERTY. 


It  now.  Why  not  have  It  through  with?' 
She  says:  'I  believe  I  will,  and,  when  he 
pays  me  the  first  of  May,  I  will  give  her  $500 
of  it.'  But  she  died  before  then.  That  was 
the  January  before  she  died."  This  is  sub- 
stantially all  of  the  testimony  relating  to  the 
subject  of  the  fund. 

The  only  question  relating  to  this  branch  of 
the  case  is  whether  the  claim  can  be  sus- 
tained as  a  declaration  of  trust.  It  is  claimed 
by  defendant  that  there  was  no  consideration 
for  the  alleged  declaration  of  trust;  that,  if 
made,  it  was  purely  voluntary;  and  that,  un- 
der the  facts  shown,  if  a  trust  exists,  it  is 
merely  executory.  It  is  contended  upon  the 
part  of  the  claimant  that  the  evidence  in  the 
case  is  clear  and  explicit  that  Salina  J.  Hall, 
in  her  lifetime,  declared  herself  voluntarily, 
by  parol,  to  be  trustee  for  the  sum  of  $1,000 
received  by  her  from  her  husband  for  the  use 
and  benefit  of  Sarah  M.  Hamilton,  and  that 
she  treated  this  sum  as  belonging  to  the  claim- 
ant, and  paid  her  interest  upon  it  as  claim- 
ant's money,  and  that  by  so  doing  she  passed 
the  title  to  it  to  Sarah  M.  Hamilton,  retaining 
in  herself  only  the  legal  title  and  the  right  to 
control  the  fund  as  tiustee  during  her  lifetime 
for  the  use  and  benefit  of  claimant;  that  is, 
that  the  trust  was  an  executed  one,  and  is  not 
purely  executory.  The  distinction  between  ex- 
ecuted and  executory  trusts  is  plainly  pointed 
out  in  Gaylord  v.  City  of  Lafayette,  115  Ind. 
423,  17  N.  E.  S99,  where  it  is  said:  "A  trust 
may  be  said  to  be  executed  when  it  has  been 
perfectly  and  explicitly  declared  in  a  writing, 
duly  signed,  in  which  the  terms  and  conditions 
upon  which  the  legal  title  to  the  trust  estate 
has  been  conveyed  or  is  held,  and  the  final  in- 
tention of  the  creator  of  the  trust  in  respect 
thereto,  appear  with  such  certainty  that  noth- 
ing remains  to  be  done  except  that  the  trus- 
tee, without  any  further  act  or  appointment 
from  the  settlor,  carry  into  effect  the  inten- 
tion of  the  donor  as  declared.  In  such  a  case, 
even  though  there  was  no  valuable  considera- 
tion upon  which  the  trust  was  originally  de- 
clared, a  court  of  chancery  will  enforce  it  in 
favor  of  one  whose  relation  to  the  donor  was 
such  as  to  show  a  good  or  meritorious  consid- 
eration. Where,  however,  property  has  been 
conveyed  upon  a  trust  the  precise  nature  of 
which  is  imperfectly  declared,  or  where  the 
donor  reserves  the  right  to  define  or  appoint 
the  trust  estate  more  particularly,  although  il 
may  be  apparent  that  the  creator  of  the  trust 
has  in  a  general  way  manifested  his  purpose 
ultimately,  at  a  time  and  in  a  manner  there- 
after to  be  determined,  either  by  himself  or 
by  the  trustee,  to  bestow  the  property  upon  a 
person  named,  the  trust  is  incomplete  and  ex- 
ecutory, and  not  within  the  jurisdiction  of  a 
court  of  chancery;  the  rule  being  that  courts 
of  equity  will  not  aid  a  volunteer  to  carry  in- 
to effect  an  imperfect  gift  or  an  executory 
trust.''  It  is  not  contended  by  counsel  for  the 
estate  that  in  this  case  a  written  declaration 
of  the  trust  was  necessary,  the  fund  being 
personal  property.    Such  a  trust  may  be  creat- 


ed by  parol.  Crissman  v.  Crissman,  2.3  Mich. 
216;  Bostwick  v.  MahafCy,  48  Mich.  342,  12 
N.  W.  192.  But  it  is  contended  that,  in  order 
to  establish  a  parol  trust,  the  evidence  must 
be  very  clear  and  satisfactory,  and  find  some 
support  in  the  surrounding  circumstances  and 
in  the  subsequent  conduct  of  the  parties.  This 
rule  is  sustained  by  the  case  above  cited,  as 
well  as  in  Allen  v.  Withrow,  110  U.  S.  119,  3 
Sup.  Ct.  517;  Bailey  v.  Irwin,  72  Ala.  505; 
Perry,  Trusts,  §§  77,  86.  To  create  a  trust, 
Avhere  the  donor  retains  the  property,  the 
acts  or  words  relied  upon  must  be  unequivocal. 
Young  V.  Young,  80  N.  Y.  422;  27  Am.  & 
Eng.  Enc.  Law,  p.  56,  and  cases  there  cited. 
And  this  rule  applies  with  peculiar  force 
where  it  is  claimed  that  the  donor  constituted 
himself  trustee.  Williams  v.  Yager,  91  Ky. 
282,  15  S.  W.  660.  In  Beaver  v.  Beaver,  117 
N.  Y.  421,  22  N.  E.  940,  which  was  cited  with 
approval  by  this  coiu't  in  O'Neil  v.  Green- 
wood, 64  N.  W.  511,  it  was  held  that,  "td 
constitute  a  trust,  there  must  be  either  an  ex 
plicit  declaration  of  trust,  or  circumstances 
which  show  beyond  reasonable  doubt  that  a 
trust  was  intended  to  be  created."  The  mere 
declarations  of  an  intention  or  purpose  to 
create  a  trust  which  is  not  carried  out  are  of 
no  value,  and  a  mere  agreement  or  statement 
of  an  intent  to  make  a  gift  in  the  future  is  not 
sufficient.  It  must  be  such  that,  from  the  time 
it  is  made,  the  beneficiary  has  an  enforceable 
equitable  interest  in  the  property,  contingent 
upon  nothing  except  the  terms  imposed  by  the 
declaration  of  the  trast  itself.  The  rule  in  re- 
lation to  the  creation  of  trusts  is  well  stated 
in  Ray  v.  Simmons,  11  11.  I.  266,  as  follows: 
"A  person  need  use  no  particular  form  of 
words  to  create  a  trust  or  to  make  himself  a 
trustee.  It  is  enough  if,  having  the  property, 
he  conveys  it  to  another  in  ti'ust,  or  (the 
property  being  personal)  if  he  unequivocally 
declares,  either  orally  or  in  writing,  that  he 
holds  it  in  prsRsenti  in  trust  or  as  a  trustee  for 
another."  Many  cases  are  cited  in  support  of 
this  proposition.  The  general  rule  is  laid 
down  in  Pen-y,  Trusts,  §  86,  as  follows: 
"When  a  person  sui  juris,  orally  or  in  writ- 
ing, explicitly  or  impliedly  declares  that  he 
holds  personal  property  in  prajseuti  for  anoth- 
er, he  thereby  constitutes  himself  an  express 
trustee." 

From  an  examination  of  the  testimony  in 
this  case,  it  is  evident  that  no  trust  was  ever 
created,  and  the  most  that  can  be  said  of  it 
is  that  it  was  the  intent  of  Mrs.  Hall  at  some 
future  time  to  give  to  Mrs.  Hamilton  the  sum 
of  $1,000.  But  counsel  contends  that  the  pay- 
ment of  interest,  and  the  promise  to  pay  in- 
terest in  the  future,  evidences  the  setting 
apart  of  the  fund  as  the  money  of  Mrs.  Ham- 
ilton. We  think  not.  Mr.  O'Keefe  testified, 
upon  that  point,  that  Mrs.  Hall  said  that  there 
was  no  particular  time  she  was  obliged  to  give 
it  to  Mrs.  Hamilton,  only  she  was  going  to 
give  it  to  her  as  she  saw  fit, — saw  that  she 
could;  that  Mrs.  Hamilton  wanted  her  to  giv6 
it  to  her  all  at  once,  but  she  would  not  do 


EXPRESS  TBUST. 


169 


that;  she  wanted  to  give  it  to  her  in  small 
amounts  alone:,  so  that  Mrs.  Hamilton  would 
vise  it  for  her  own  personal  use.  It  appears, 
therefore,  very  plain  that  there  was  no  fund 
set  apart,  and  the  payments  made,  whether 
of  principal  or  interest,  were  only  to  help 
Mrs.  Hamilton  as  her  needs  demanded.  It  is 
evident  tliat  there  was  an  intent  on  the  part 
of  Mrs.  Hall  to  make  a  gift  at  some  indefinite 
time  in  the  future,  but  she  set  apart  no  fund 
for  that  purpose.  It  is  very  different  from  the 
case  of  O'Ned  v.  Greenwood  (Mich.)  64  N. 
W.  511.  There  Mr.  Willey  intended  to  set 
apart,  and  did  set  apart,  the  notes  and  cer- 
tificates a^  the  property  of  Lavolette  O'Neil 


and  Calista  Warner,  though  he  retained  pos- 
session of  them  and  appropriated  the  income. 
At  his  death  he  left  the  fund  intact  as  evi- 
dence of  the  execution  of  the  trust.  The  tes- 
timony here  falls  far  short  of  establishing  an 
executed  trust,  one  which  can  be  enforced. 
Under  this  evidence  we  think  it  could  hardly 
be  contended  that  Mrs.  Hamilton  could  have 
enforced  the  agreement  against  Mrs.  Hall 
during  her  lifetime,  and  the  court  was  not  in 
error  in  holding  that  no  trust  was  ever  creat- 
ed, and  very  properly  directed  verdict  and 
judgment  in  favor  of  defendant.  That  judg- 
ment must  be  affirmed.  The  other  justices 
concuiTed. 


170 


ESTATES   IN   REAL  PROPERTY. 


CHAPMAN  V.  CHAPMAN  et  al. 
(65  N.  W.  215.) 

Supreme  Court  of  Michigan.    Dec.  10,  1895. 

Appeal  from  circuit  court,  Wayne  county,  in 
chancery;  George  S.  Hosmer,  Judge. 

Bill  by  Albert  J.  Chapman  against  Grace 
A.  Chapman,  impleaded  with  another,  to  have 
a  life  estate  declared  in  certain  land.  A  de- 
nuu-rer  to  the  bill  was  sustained,  and  com- 
plainant appeals.     Affirmed. 

John  Galloway  and  James  H.  Pound,  for  ap- 
pellant. Ed.  E.  Kane,  for  appellee  Grace  A. 
Chapman. 

LONG,  J.  The  bill  in  this  case  was  filed 
to  have  a  life  estate  declared  in  complainant 
to  lot  6,  block  14,  Crane  &  Wesson's  section 
of  Forsyth's  farm,  in  the  city  of  Detroit. 
The  bill,  in  substance,  sets  out  that,  in  Au- 
giist,  1879,  complainant  boiTowed  from  one 
Samuel  F.  Hopkins  the  sum  of  $1,000  for  the 
purpose  of  purchasing  a '  home  for  himself 
and  family;  that  the  same  was  borrowed  up- 
on the  understanding  with  Hopkins  that  it 
was  to  be  used  for  such  purpose;  that  com- 
plainant's wife,  at  that  time,  was  informed  of 
the  purpose  for  which  it  was  borrowed;  and 
that  the  home  so  purchased  was  to  be  used 
and  occupied  by  complainant  and  wife,  as 
such,  so  long  as  each  should  live.  The  title 
was  taken  in  complainant's  wife.  They  had' 
two  children  at  the  time  of  the  purchase.  A 
mortgage  was  executed  to  Hopkins  to  secure 
the  payment  of  the  moneys.  The  parties  en- 
tered into  possession,  and  continued  to  reside 
there  together  until  the  spring  of  1891,  when 
complainant's  wife  and  daughters  left  the 
home,  and  went  to  reside  elsewhere,  the  com- 
plainant continuing  to  occupy  the  premises 
and  making  improvements  thereon.  In  No- 
vember following,  complainant's  wife  died, 
leaving  a  last  will  and  testament  devising  the 
property  to  her  two  daughters.  The  bill  was 
demurred  to  in  the  court  below  and  the  de- 
murrer sustained.  The  claim  here  is  that  the 
property  was  held  in  trust  by  complainant's 
wife  for  him  and  his  family. 

It  does  not  appear,  by  the  bill,  that  any 
writing  ever  existed  between  the  complainant 
and  Hopkins  in  reference  to  these  lands,  or 
between  complainant  and  his  wife.  The  mon- 
eys were  borrowed  from  Hopkins  to  make  the 
purchase,  and  the  title  taken  directly  to  the 
wife,  and  all  the  claim  which  the  bill  sets  up 


to  establish  the  life  estate  in  complainant  is 
shown  to  rest  in  the  declarations  of  complain- 
ant to  Hopkins,  and  the  claimed  understand- 
ing between  complainant  and  his  wife,  that 
the  premises  should  be  kept  as  a  home  for 
complainant  and  his  wife  during  each  of  their 
lives.  Section  6179,  How.  Ann.  St.,  provides: 
"No  estate  or  interest  in  lands,  other  than 
leases  for  a  term  not  exceeding  one  year,  nor 
any  trust  or  power  over  or  concerning  lands, 
or  in  any  manner  relating  thereto,  shall  here- 
after be  created,  granted,  assigned,  suiTen- 
dered  or  declared  unless  by  act  or  operation 
of  law  or  by  deed  or  conveyance  in  writing 
subscribed  by  the  party  creating,  granting, 
assigning,  sui'reudering  or  declaring  the  same, 
or  by  some  person  thereunto  by  him  lawfully 
authorized  in  writing."  We  think  there  is 
nothing  set  up  in  the  bill  which  would  bring 
the  case  out  of  this  statute.  A  resulting  trust 
cannot  be  created,  except  by  act  or  operation 
of  law,  or  by  one  of  the  other  methods  pointed 
out  by  this  section  of  the  statute.  All  that 
can  be  said  is  that,  under  the  allegations  in 
the  bill,  the  complainant's  wife  knew  how  the 
lands  were  purchased,  and  agreed  with  her 
husband  that  it  should  be  a  home  for  the  fam- 
ily and  for  themselves  so  long  as  they  lived. 
The  title  vested  absolutely  in  the  wife,  and 
under  the  statute  she  could  devise  or  convey 
it  at  will,  without  interference  of  her  hus- 
band. In  Shafter  v.  Huntington,  53  Mich. 
•^5.  19  N.  W.  11,  Mr.  Justice  Champlin, 
speaking  of  this  statute,  said:  "Since  the 
passage  of  the  foregoing  enactments  (section 
0179,  How.  Ann.  St)  in  1846,  no  express  tnist 
has  ever  been  allowed  to  be  ingrafted  by 
parol  conveyance,  but  has  universaUy  been 
held  to  be  void."  One  of  the  daughters  con- 
sented to  release  to  her  father,  but  the  other 
refused  to  do  so.  The  circumstances  stated 
in  the  bill  show  that  the  situation  of  the  com- 
plainant is  peculiarly  unfortunate.  He  has 
spent  many  years  in  this  homestead,  expend- 
ing large  sums  of  money  in  beautifying  and 
improving  it,  and  his  two  daughters,  defend- 
ants in  this  case,  now  claim  to  hold  the  legal 
title  and  right  to  immediate  possession;  but, 
whatever  the  hardship  may  be,  it  is  not  for 
the  courts  to  set  aside  the  statute,  or  be 
guided  by  any  other  rule  than  that  which  the 
statute  so  plainly  lays  down.  The  decree  of 
the  court  below,  sustaining  the  demurrer, 
must  be  affirmed.  The  other  justices  con- 
cm-red. 


EXPRESS  TRUST. 


171 


WHITE  et  al.  v.  RICE  et  al. 
(70  N.  W.  1024.) 

Supreme  Court  of  Micliignn.    April  27,  1897. 

Appeal  from  circuit  court,  Cass  county,  in 
chancery;   Orville  W.  Coolidge,  .Judge. 

Bill  by  Nathaniel  White,  Henry  Ferrel,  and 
E.  D.  Bronner,  as  tinistees  and  agents  of  the 
Methodist  Episcopal  Church,  against  Samuel 
Rice,  the  Pleasant  Valley  Congregation  of  the 
Brethren  Church,  and  others,  for  an  injunc- 
tion. From  an  order  oveiTuling  a  demuirer 
to  the  bill,  the  defendants  appeal.    Allirmeil. 

Howell  &  Carr  and  L.  A.  Tabor,  for  appel- 
lants.   Harsen  D.  Smith,  for  appellees. 

LONG,  C.  J.  This  bill  is  filed  for  the  pur- 
pose of  obtaining  an  injunction  restra.ining 
the  defendants  from  interfering  in  any  way 
with  the  Methodist  Episcopal  Church  Society 
and  the  complainants  in  using  a  certain 
church  edifice  in  which  lO  hold  religious  serv- 
ices, and  to  prevent  the  defendants  from  in- 
terfering with  the  complainants  in  opening 
and  entering  said  church  for  religious  serv- 
ices. Upon  the  fiiing  of  the  bill  an  injunction 
was  issued  and  sc-rved  upon  the  defendants  in 
accordance  with  the  prayer  of  the  bill.  The 
defendant  the  Pleasant  Valley  Congregation 
of  the  Brethren  Church  filed  a  general  demur- 
rer to  the  bill,  setting  out  that  the  bill  did 
not  state  a  cause  v/hich  entitled  the  complain- 
ants to  any  relief  whatever.  The  other  de- 
fer dants  answered  the  bill.  The  cause  came 
on  to  be  heard  on  the  demurrer.  The  court 
overruled  the  demurrer,  without  costs,  and 
gave  the  defendants  30  days  to  answer.  The 
appeal  to  this  court  is  from  the  order  over- 
ruling the  demurrer. 

It  appears  ty  the  bill  that  the  Pleasant 
Valley  Congregation  of  the  Brethren  Church 
is  a  corporation  organized  and  existing  un- 
der chapter  170,  How.  Ann.  St;  that  in  1890 
it  owned  a  church  building,  which  burned 
during  that  year;  that  subsequently  negotia- 
tions were  entered  into  between  the  mem- 
bers of  that  corporation  and  the  members 
of  the  Methodist  Episcopal  Church  Society, 
called  the  "Bethel  Class,  Vandalia  Circuit," 
and  other  persons  in  the  neighborhood,  to 
raise  a  common  fund  with  which  to  rebuild 
such  church  edifice,  and  which  it  was  agreed 
should  be  used,  not  only  by  the  Pleasant  Val- 
ley Congregation,  but  by  other  denominations 
in  common  with  them,— that  is,  the  Baptist, 
Disciple,  Metho<list,  Congregational,  and  Pres- 
byterian denominations.  The  Pleasant  Val- 
ley Congregation  then  claimed  to  have  $!)30, 
which  had  been  obtained  from  insurance  on 
the  old  building,  and  that,  if  $400  would  be 
raised  by  the  other  parties  who  were  inter- 
ested in  the  erection  of  the  church  edifice, 
and  not  belonging  to  the  Pleasant  Valley  Con- 
gregation, but  belonging  to  the  other  denom- 
inations, the  Pleasant  Valley  Congregation 
would  build  such  church  upon  what  was  call- 
ed "White's  Four  Coi-ners,"  and  that  such 
church  should  be  open  to  worship  by  the  oth- 


er denominations  above  enumerated.  The  bill 
further  charges  that  Walter  Claric,  the  minis- 
ter in  charge  of  the  Pleasant  Valley  Congre- 
gation, represented  to  the  complainants  White 
and  his  wife,  Ella  White,  that  it  would  locate 
such  church  upon  White's  Four  Corners, 
on  the  land  of  .said  White,  if  the  site  could 
be  obtained  therefor,  and  that  the  complain- 
ant White  stated  that  he  would  furni.sh  the 
site  and  donate  !?100  for  erecting  the  building 
on  the  express  condition  that  it  should  be 
used  only  for  chiu'ch  property,  and  that  when 
erected,  and  when  not  in  use  by  tlio  rio;i.sant 
Valley  denomination,  it  should  be  open  for 
use  by  tlie  Methodist,  as  well  as  the  Baptist, 
Congregational,  Presbyterian,  and  Discipie 
churches;  that  in  tliat  neighborhood  there 
were  people  connected  with  said  different  de- 
nominations, either  as  members  or  in  belief, 
and  that  they  wanted  a  chin-ch  in  which  they 
would  be  at  liberty  to  worship;  and  that  upon 
this  condition,  and  no  other,  would  he  give 
said  site  or  contribute  the  .$100;  that  his  prop- 
osition was  accepted  by  said  Walter  Clark 
in  behalf  of  said  church;  and  that  a  dee', 
was  made  and  delivered  on  May  30,  1891. 
The  deed  expressed  the  consideration  of  "one 
dollar  and  other  considerations  hereinafter 
stated."  After  the  description  in  the  deed, 
it  recited:  "For  and  during  the  period  or 
term  that  said  land  shall  be  used  for  church 
purposes,  and  no  longer,  said  church,  when  on 
said  site,  shall,  when  not  in  use  by  the  party  of 
the  second  part  hereto,  be  open  for  use  to  the 
following  orthodox  denominations,  to  wit,  the 
Baptist,  Disciple,  Methodist,  Congregational, 
Presbyterian,  together  with  all  and  singular  the 
hereditaments,"  etc.  This  deed  was  executed 
by  Nathaniel  White  and  wife  to  the  Pleasant 
Valley  Congregation  of  the  Brethren  Church, 
a  body  corporate  under  the  laws  of  ^Michigan. 
The  bill  further  alleges  that  in  18&4  the  quar- 
terly conference  of  the  Niles  district  autlior- 
ized  the  Vandalia  cii-cuit  to  hold  meetings  in 
this  building,  and  then  made  it  a  part  of  the 
Vandalia  charge,  and  called  it  the  "Bethel 
Class";  that  the  trustees  of  the  Pleasant  Val- 
ley Congregation,  then  denying  that  the  com- 
plainants and  the  Methodist  society  had  any 
right  to  occupy  the  church,  excluded  them 
therefrom.  The  bill  contains  the  usual  prayer 
for  injunction,  as  above  set  forth,  and  further 
prays  that  the  verbal  agreement  by  which 
the  contributions  were  made  may  be  decreed 
to  be  specifically  performed,  and  that  the 
deed  be  decreed  to  create  a  trust,  and  tliat 
such  trust  may  be  enforced.  The  injunction 
which  was  issued  in  the  case  contains  the 
command  to  the  defendants  that  "you  do  ab- 
solutely desist  and  refrain  from  interfering 
in  any  way  with  the  said  Methodist  Episcopal 
church  and  society,  and  using  said  church  to 
hold  religious  services,  therein,  and  prevent- 
ing the  said  complainants  from  opening  and 
entering  said  church  in  order  that  meetings 
may  be  held  by  the  said  church  and  society 
under  the  deed  of  conveyance  of  said  church 
premises;    and   also   restraining  and  strictly 


172 


ESTATES   IN   REAL  PROPERTY. 


forbidding  from  preventing  tlie  Reverend  H.  H. 
Miller  or  any  other  minister  of  said  society 
from  entei-ing  said  edifice  as  the  minister  and 
said  pastor  of  the  same,  and  in  any  manner 
interfering  with  him  in  holding  religious  serv- 
ices therein,  and  in  his  discharge  of  his  du- 
ties as  such  pastor  and  minister  in  charge  of 
such  society,  and  to  refrain  from  interfering 
in  auy  manner  with  the  rights  of  the  said 
Methodist  Episcopal  church  and  society,  or 
with  the  complainants,  to  open  said  church; 
that  the  same  may  be  opened,  used,  and  oc- 
cupied for  religious  services;  that  the  said 
church  should  be  opened;  and  that  you  and 
each  of  you  shall  refrain  and  absolutely  de- 
sist against  locking  the  doors  of  said  church, 
from  locking  said  church  against  said  com- 
plainants and  the  Methodist  Episcopal  church 
and  society,  until  the  further  order  of  this 
court." 

It  is  contended  by  counsel  for  the  defend- 
ants: (1)  That  under  the  statute  a  trust  can- 
not be  created  or  exist  in  real  estate  by  parol; 
that  the  same  must  be  evidenced  by  some 
writing.  (2)  That  the  deed  in  controversy  is 
not  a  trust  deed.  (3)  That  the  complainants 
cannot  maintain  this  bill.  (4)  That  an  in- 
junction is  too  broad,  as  it,  by  its  terms,  takes 
the  possession  of  the  church  property  from 
the  defendants,  and  turns  it  over  to  the  com- 
plainants. 

1.  As  to  the  first  proposition,  it  may  be  said 
that  the  recitations  in  the  bill  simply  show 
the  suiToundings  and  situation  of  the  parties 
at  the  time  of  tlie  execution  of  the  deed,  as 
well  as  the  consideration  for  which  the  deed 
was  given.  Such  consideration  may  always 
be  shown  by  parol  testimony. 

2.  We  think  the  deed  itself  creates  a  trust 
iu  favor  of  the  denominations  named  therein, 
which  may  be  enforced  in  equity.  Sections 
5573-5575,  How.  Ann.  St.,  provide  for  the 
creation  of  a  tmst  for  the  beneficial  interests 
of  any  person  when  such  trust  is  fully  ex- 
pressed and  clearly  defined  upon  the  face  of 
the  insti'ument  creating  it.  No  particular 
words  are  necessary  to  create  a  trust.  Chad- 
wick  V.  Ohadwick,  59  Mich.  92,  26  N.  W.  288. 
In  the  deed  the  trust  is  fully  stated.  Four 
hundred  dollars  was  raised  by  the  other  de- 
nominations, and  used  in  the  building  of  the 
church  edifice.  The  title  to  the  property  was 
taken  in  the  Pleasant  Valley  society,  but  the 
deed  expressly  declares  that  said  church, 
"when  on  said  site,  shall,  when  not  used  by 
the  party  of  the  second  part  hereto,  be  open 
for  use  to  the  following  orthodox  denomina- 
tions, to  wit,"  etc.  No  other  interpretation 
could  be  given  to  this  language  than  that  it 
was  the  intent  of  tlie  parties  to  the  deed  that 
these  other  societies  should  have  the  use  of 
this  church  edifice  when  not  in  use  by  the 
Pleasant  Valley  society;  and  the  breach  set 
out  is  that  these  other  societies  were  denied 


absolutely  the  use  of  the  church  edifice  at 
any  and  all  times.  But  it  is  said  that  a  cor- 
poration has  no  powers  except  those  confen-ed 
upon  it  by  statute,  and  that  the  statute  does 
not  authorize  it  to  act  as  a  trustee  in  a  trust, 
and  that  such  power  is  ultra  vires.  "We  think 
it  is  now  well  settled  that  a  corporation  with 
legal  capacity  to  hold  property  may  take  and 
hold  it  in  trust,  when  authorized  by  law,  in 
the  same  manner,  and  to  the  same  extent,  as 
private  individuals  may  do.  Society  v.  Atwa- 
ter,  23  Conn.  34;  Mason  v.  Trustees,  27  N.  J. 
Eq.  47;  Maynard  v.  Woodard,  36  Mich.  423; 
4  Am.  &  Eng.  Enc.  Law,  218.  The  claim 
that  is  made  that  the  beneficiary  in  a  trust 
for  religious  pui^poses  must  be  a  corporation 
organized  under  the  laws  of  this  state  has 
no  force.  Section  4640,  How.  Ann.  St.,  re- 
fers to  the  legal  title  or  interest  in  the  gran- 
tee or  trustee,  and  not  to  the  beneficiary  in  the 
trust,  as,  under  section  4637,  the  lands  con- 
veyed to  any  person  as  trastee  may  be  held 
in  trust  for  the  use  of  any  congregation  or  re- 
ligious society  organized  within  this  state. 

It  is  further  contended  that  the  beneficiaries 
named  in  the  deed  are  indefinite,  and  that  the 
trust,  if  sustainable  at  all,  can  only  be  sus- 
tained on  the  doctrine  of  charitable  trusts, 
which  is  claimed  to  be  founded  on  the  Englisli 
statute  of  charitable  uses,  and  that  this  stat- 
ute has  never  been  adopted  in  this  state. 
However  this  may  be,  trusts  are  enforceable 
in  this  state  the  same  as  they  were  at  the 
common  law,  subject  to  the  provisions  of  our 
statute.  They  must  be  fully  expressed  and 
clearly  defined  upon  the  face  of  the  instru- 
ment creating  them.  The  beneficiaries  here 
named  are  the  members  of  the  several  speci- 
fied denominations  residing  in  the  vicinity  of 
the  church.  An  unincorporated  society  or  a 
voluntary  association,  like  a  religious  society 
or  denomination,  is  capable  of  taking  as  a 
beneficiary  in  a  trust.  Society  v.  Fitch,  8 
Gray,  431;  Smith  v.  Bonhoof,  2  Mich.  116. 
See,  also,  Tomlin  v.  Blunt,  31  111.  App.  2^4. 

3.  The  claim  that  the  complainants  are  not 
proper  parties  to  bring  this  bill  has  no  force. 
They  showed  by  their  bill  that  they  were  the 
trustees  and  agents  of  the  Methodist  Episco- 
pal Church,  and  were  acting  in  behalf  of 
those  and  all  other  persons  of  said  church, 
and  all  having  a  like  interest.  That  question 
was  settled  in  Fuchs  v.  Meisel,  102  Mich.  367, 
60  N.  W.  77.3. 

4.  We  think  the  injunction  does  not  turn 
the  Pleasant  Valley  society  out  of  the  church 
building,  but  simply  goes  to  the  extent  of 
preventing  that  society  or  its  members  from 
locking  the  doors  of  the  church  against  the 
other  societies  and  their  members  named  in 
the  deed.  The  order  of  the  court  below  over- 
ruling the  demurrer  will  be  affirmed,  with 
costs  against  the  defendants.  The  other  jus- 
tices concur. 


KESULTING  TRUST. 


173 


PERKINS  et  al.  v.  NICHOLS  et  al. 

(11  Alk-n,  542.) 

Supreme  Judicial  Court  of  Massachusetts.    Es- 
sex.     January  Term,   18GG. 

D.  Roberts  for  plaintiffs.  J.  A.  Gillis,  for  de- 
fendants. 

COLT,  J.  This  case  comes  before  us  for  a 
hearing  upon  the  bill  and  answer  alone.  The 
general  rule  in  equity,  that  the  answers  of  the 
defendants,  so  far  as  they  are  responsive  to  the 
bill,  are  evidence  in  their  favor,  and  must  pre- 
vail unless  controlled  by  opposing  proof,  is  not 
controverted.  A  distinction  is  made  and  relied 
on  by  the  plaintiffs  between  those  allegations 
which  are  responsive  and  those  which  are  mere 
defensive  allegations  in  the  nature  of  pleadings. 
It  is  not  always  easy  to  draw  the  line  between 
them.  In  this  case  it  is  not  necessary  to  de- 
cide whether  the  facts  stated  in  the  answer  are 
strictly  responsive  or  not.  When  no  replica- 
tion is  filed  by  the  plaintiff,  no  issue  made  up- 
on the  truth  of  the  defendant's  allegations,  but 
the  cause  is  set  down  for  hearing  on  the  bill 
and  answer,  then  the  answer  is  to  be  consid- 
ered as  true  throughout,  in  all  its  allegations, 
whether  responsive  or  not;  otherwise  the  de- 
fendant would  be  precluded  from  proving  the 
allegations  which  are  only  defensive.  Buttrick 
V.  Holden,  13  Mete.  S-jG;  Brinckerhoff  v. Brown, 
7  Johns.  Ch.  217;  2  Daniell,  Ch.  Prac.  8-40,  note, 
998. 

The  inquiry  then  is,  whether  upon  this  case 
as  presented  an  equity  is  raised  requiring  the 
court  to  decree  a  conveyance  to  the  heirs  of 
Sarah  F.  Gardner  of  the  real  estate  named  in 
the  receipt  of  the  defendant  Nichols,  dated  Feb- 
ruary 2,  1846, 

Whenever  an  estate  has  been  purchased  in 
the  name  of  one  person  and  the  purchase  money 
has  proceeded  from  another,  a  resulting  trust 
arises  in  favor  of  the  party  paying  for  the  prop- 
erty, and  the  nominal  purchaser  is  held  in  equi- 
ty as  a  mere  trustee,  upon  the  presumption 
that  the  party  paying  for  the  estate  intended 
it  for  his  own  benefit.  This  presumption  does 
not  arise  in  a  few  excepted  cases,  where  from 
the  relation  of  the  parties  the  payment  may  be 
supposed  to  be  a  gift  to  the  nominal  purchaser; 
as,  for  instance,  where  the  purchase  money  is 
paid  by  the  husband  and  the  conveyance  is  to 
the  wife;  but  even  then  the  trust  may  be  estab- 
lished by  proof  that  the  husband  did  not  in- 
tend to  give  to  the  wife  the  beneficial  interest 


in  the  estate.  Whitten  t.  Whitten,  3  Cush. 
191.  The  presumption  arising  from  the  bare 
payment  of  the  consideration  may  in  all  cases 
be  controlled  and  rebutted  by  other  evidence 
showing  that  the  party  making  the  payment 
did  not  intend  to  become  the  equitable  owner 
of  the  estate;  but  ordinarily,  in  the  absence  of 
such  proof,  the  presumption  stands,  and  courts 
of  equity  will  enforce  the  trust  in  favor  of  the 
real  purchaser,  and  decree  a  conveyance  to  him. 
McGowan  v.  McGowan.  14  Gray,  119;  Buck 
V.  Warren,  Id.  122,  note. 

The  defendants  in  this  case  allege  and  offer 
to  prove  that  at  the  time  the  defendant  Nichols 
received  the  conveyance  of  the  estate  he  was 
but  a  nominal  purchaser;  that  the  money  paid 
for  it  was  furnished  by  Samuel  Gardner;  that, 
though  the  money  was  handed  to  him  by  Mrs. 
Gardner,  and  the  writing  of  February  2,  1S4G, 
given  to  her,  yet  she  was  in  that  transaction 
acting  as  the  agent  of  her  husband;  that  the 
land  was  purchased  for  him,  and  belonged  to 
and  was  always  treated  by  him  and  his  wife  as 
his  property,  and  not  the  wife's,  and  that  she  at 
no  time  during  her  life  made  any  claim  to  the 
same.  Taking  these  allegations  to  be  true,  and 
applying  the  doctrine  in  equity  above  stated,  it 
is  plain  that  if  the  deed  had  been  given  to 
Mrs.  Gardner  at  the  time  of  the  sale,  she  would 
have  held  as  trustee  for  Samuel  Gardner  and 
his  heirs;  and  it  follows  that  the  defendant 
Nichols,  who  took  the  conveyance  to  himself, 
held  under  the  same  resulting  trust  in  favor  of 
Samuel  Gardner  and  his  conveyance  to  the  de- 
fendant Mrs.  Putnam,  as  heir  to  Gardner,  was 
a  proper  discharge  of  the  trust.  Nor  is  it  any 
objection  that  the  facts  upon  which  this  trust 
is  to  be  estabhshed  must  be  made  out  by  parol 
evidence,  even  though  the  recital  in  the  deed 
that  the  consideration  was  paid  by  the  nominal 
purchaser  is  thereby  contradicted.  The  facts 
being  proved  by  any  competent  evidence,  writ- 
ten, verbal  or  circumstantial,  the  trust  follows 
by  implication  of  law.  Gen.  St.  c.  100,  §  19; 
Livermore  v.  Aldrich,  5  Cush.  431,  Pea  body  v. 
Tarbell,  2  Cush.  226;  Browne,  St.  Frauds,  § 
92. 

Upon  the  whole  case,  no  equity  is  shown  to 
compel  a  specific  performance  of  the  writing 
signed  by  Nichols,  or  the  cancellation  of  the 
deed  from  him  to  Mrs.  Putnam.  And  reaching 
this  result,  it  is  unnecessary  to  consider  the  ob- 
jection taken  by  the  defendants,  that  there  is 
no  sufficient  description  of  the  boundaries  of 
the  estate  upon  which  to  found  a  decree. 

Bill  dismissed,  with  costs. 


174 


ESTATES  IN  REAL  PROPERTY. 


GOLDSMITH  et  al.  v.  GOLDSMITH. 

(39  N.  E.  1067,  145  N.  Y.  313.) 

Court  of  Appeals  of  New  York.     March  12, 
189.5. 

Appeal  from  city  court  of  Brooklyn,  gen- 
eral term. 

Action  by  Annie  Goldsmith  and  others 
against  Leopold  Goldsmith.  From  an  order 
of  the  general  term  (25  N.  Y.  Supp.  993) 
affirming  a  judgment  for  plaintiffs,  defend- 
ant appeals.     Affirmed. 

Samuel  Greenbaum,  for  appellant.  Jerry  A. 
Wernberg,  for  respondents. 

FINCH,  J.     The  findings  in  this  case  show 
a  situation  which  permits  the  application  of 
an   equitable   remedy.     They   establish   that 
Mrs.  Goldsmith,  while  the  owner  and  in  pos- 
session of  a   house  and  lot  known    as  the 
"Myrtle  Avenue  Property,"  met  with  an  ac- 
cident which  incapacitated  her  for  its  further 
care  and   management,   and  induced  her  to 
commit  it  to  her  son,  the   defendant,   Leo- 
pold.    That  son  was  of  age,  but  unmarried, 
and  lived  with  the  family,  which  further  con- 
sisted of  four  children,  three  daughters  and 
one  son,   all  of  them,   with   perhaps   a   sin- 
gle exception,  minors,  and  two  of  them  under 
10  years  of  age.     The  Myrtle  avenue  prop- 
erty furnished  a  home  for  the  family,  which 
was  supported  partly  by  the  rental  of  a  por- 
tion of  the  house,  partly  by  the  husband  and 
father,  and  to  some  extent  by  the  labor  of 
Annie,  the  eldest  daughter,  upon  whom  the 
household    management    devolved    after    the 
disability  of  the  mother.     The  means  of  the 
family  were  narrow  and  limited.     The  home 
which  they  occupied  was  very  essential  to 
their  comfort  and  support,  but  even  that  was 
incumbered  by  a  mortgage,  the  annual  in- 
terest of  which  was  a  charge  upon  their  re- 
sources.    In  this  state  of  affairs,  the  find- 
ings   show    that    the    mother    conveyed    the 
house  and   lot  to  her  son,   Leopold,   upon  a 
promise  on  his  part  to  hold  it  for  the  bene- 
fit of  the  other  four  children  in  common  with 
himself,  and  give  to  them  their  shares  in  it. 
He  paid  no  consideration  for  it  beyond  the 
promise  thus  made.     It  was  a  further  part 
of  the  arrangement  that  he  should  have  all 
the  accruing  rents,  but  should  pay  the  inter- 
est on  the  mortgage  and  the  taxes  on  the 
property,  and  was  to  have  his  board  in  the 
family  without  charge.    In  pursuance  of  this 
arrangement,  the  deed  was  executed  and  de- 
livered,   and    Annie    herself   took    it    to    the 
clerk's  office  for  record.     It  is  quite  evident 
that  this  was  an  arrangement  founded  upon 
the  relation  of  mother  and  son  and  brothers 
and    sisters,    involving   the   trust   and   confi- 
dence growing  out  of  that  relation,  and  in- 
tended as  a  settlement  of  the  family  affairs. 
It  furnished  a  home  for  all,  in  which  they 
were  to   have  a   common  right,   and    which 
was  to  be  for  their  joint  benefit.     The  deed 
was  made  in  February,   1887.     The  mother 
died  in  March  of  the  next  year.     The  plan 


originally  adopted  was  can-ied  out  during 
her  life  and  for  some  considerable  time  after 
her  death.  The  daughters  furnished  Leo- 
pold his  board,  without  compensation  or 
charge,  as  was  arranged,  and  occasionally 
paid  out  small  sums  for  ordinary  repairs  of 
the  house.  A  time  came  when  Leopold  sold 
the  Myrtle  avenue  property,  and  with  a  por- 
tion of  the  proceeds  bought  a  house  and  lot 
on  De  Kalb  avenue.  There  is  evidence  that 
on  this  occasion  he  was  asked  to  take  a  deed 
in  the  name  of  all  the  children  interested, 
but  objected,  on  the  ground  that  it  would  be 
troublesome  and  inconvenient,  and  promised 
to  execute  a  separate  paper  acknowledging 
and  securing  their  rights  in  the  property. 
Soon  after  he  totally  repudiated  the  agree- 
ment, and  claimed  to  be  the  sole  and  abso- 
lute owner  of  the  property,  and  now  defends 
against  the  children,  insisting  that  the  agree- 
ment, if  made,  was  void  for  uncertainty,  and 
because  it  rested  solely  in  parol. 

There  was  enough  of  evidence  to  warrant 
the  finding  that  Leopold,  at  the  time  of  the 
conveyance,  promised  his  mother  that  he 
would  hold  the  property  in  trust  for  the 
plaintiffs  herein.  What  he  said  on  that  oc- 
casion was  expressed  in  somewhat  different 
terms  by  different  witnesses,  but  the  sub- 
stance of  all  of  it  concurred  in  the  promise 
that  he  would  hold  the  legal  title  for  the 
benefit  of  the  plaintiffs.  That  agreement 
was  reflected  in  the  actions  of  both  parties 
for  some  years  after  it  was  made,  and  in- 
duced the  plaintiffs  to  do  what  otherwise 
they  would  not  have  done,  and  furnish  Leo- 
pold his  board  without  charge.  The  conduct 
of  the  latter  in  now  denying  the  rights  of  the 
plaintiffs  operates  as  a  manifest  fraud  up- 
on them,  and  upon  the  purpose  of  the  dead 
mother  in  seeking  to  provide  for  her  chil- 
dren. It  would  be  a  reproach  to  equity  if 
it  proved  unable  to  redress  such  a  wrong. 

It  may  be  granted  that  no  express  trust 
was  created,  and  that  the  judgment  cannot 
be  sustained  on  that  gi'ound,  but  we  think 
the  case  is  one  in  which  equity  will  raise 
out  of  the  situation,  from  the  grouped  and 
aggregated  facts,  an  implied  trust  to  pre- 
vent and  redress  a  fraud,  and  which  trust 
will  be  unaffected  by  the  statute  of  frauds, 
and  may  properly  be  enforced.  The  general 
rule  was  declared  in  Wood  v.  Rabe,  96  N.  Y. 
425,  426,  to  be  that  when  a  person,  through 
the  influence  of  a  confidential  relation,  ac- 
quires title  to  property  or  obtains  an  ad- 
vantage which  he  cannot  conscientiously  re- 
tain, the  court,  to  prevent  the  abuse  of  con- 
fidence, will  grant  relief.  It  was  added  that, 
while  the  fraud  must  be  something  more 
than  the  mere  breach  of  a  verbal  agreement, 
yet,  where  the  transaction  is  one  between 
parent  and  child,  and  involves  the  greatest 
confidence  on  one  side  and  the  greatest  in- 
fluence on  the  other,  the  case  is  one  in  which 
equity  may  properly  intei-vene.  One  of  the 
findings  in  this  case  is  "that,  at  the  time 
said  deed  was  delivered,  the  defendant  un- 
derstood that  his  motlier  reposed  confidence 


CONSTRUCTIYE  TRUST. 


175 


in  him,  and  with  that  understanding  accept- 
ed the  conveyance  and  the  confidence  of  his 
mother."  There  is  no  room  to  doubt  the 
trutli  of  that  finding.  There  was  not  only 
involved  the  relation  of  mother  and  son,  but 
that  of  brothers  and  sisters,  for  whose  bene- 
fit the  agreement  was  made.  The  absence 
of  a  formal  writing  grew  out  of  that  very 
confidence  and  trust,  and  was  occasioned  by 
it,  as  was  also  the  subsequent  performance 
by  the  children  of  the  condition  to  furnish 
board  without  pay.  Upon  the  whole  trans- 
action, therefore,  including  the  confidential 
relation  of  the  parties  and  its  nature  as  a 
family  arrangement,  very  much  beyond  a 
niiere  business  relation,  we  think  it  was  com- 
petent for  a  court  of  equity  to  impress  upon 


the  property  and  its  proceeds  an  implied 
trust  for  the  benefit  of  the  children.  It  is 
true  that  an  intended  fraud  is  not  explicit- 
ly and  by  the  use  of  that  word  charged  in 
the  complaint,  but  all  the  facts  are  there 
fully  and  clearly  stated,  showing  the  fraud 
attempted  to  be  perpetrated,  and  all  that  is 
omitted  is  the  word  or  expression  character- 
izing the  necessary  inference.  We  have  held 
that  such  an  omission,  after  judgment,  is  not 
material,  where  the  facts  themselves  have 
been  sufficiently  pleaded.  Whittlesey  v.  De- 
lancy,  73  N.  Y.  575.  We  think,  therefore, 
that  there  was  no  error  in  awarding  the  re- 
lief, and  that  the  judgment  and  order  ap- 
pealed from  should  be  affirmed,  with  costs. 
All  concur.     Judgment  affirmed. 


176 


ESTATES   IN   REAL  PROPERTY. 


CONNOLLY  V.  KEATING  et  aL 
((jO  N.  W.  280,  102  Mich.  1.) 
Supreme  Court  of  Michigan,    Sept.  25,  1894. 
Appeal  from  circuit  coiirt,  Hillsdale  county, 
in  chancery;   Victor  H.  Lane,  Judge. 

Suit  by  Kate  Connolly  against  Kate  J. 
Keating  and  others.  Decree  for  complain- 
ant.    Defendants  appeal.     Affirmed. 

LONG,  J.  This  bill  is  filed  for  the  pur- 
pose of  setting  aside  a  deed  executed  by 
Julian  La  Moore  and  Anna  La  Moore,  his 
wife,  to  Peter  Keating,  deceased,  and  to 
declare  the  title  to  the  premises  described 
in  said  deed  to  be  in  the  complainant.  The 
complainant's  contention  is  tliat  in  Novem- 
ber, 1887,  she  placed  in  the  hands  of  Peter 
Keating  the  sum  of  $500,  with  which  to 
pm-chase  for  her  the  lands  described  in  the 
La  Moore  deed,  and  to  have  the  title  vest 
in  herself,  or  in  Peter  Keating  as  tnistee 
for  her;  that  Keating  took  the  money,  made 
the  pm-chase  from  La  Moore,  and  took  the 
title  to  himself  absolutely,  without  her  knowl- 
edge or  consent,  and  against  her  express 
directions  and  requests;  that,  after  the  deed 
was  executed,  Mr.  Keating  put  it  upon  rec- 
ord and  afterwards  delivered  it  to  her, 
since  which  time  it  has  been  in  ber  posses- 
sion, but  that  while  Keating  lived  she  never 
examined  the  deed,  to  see  its  contents,  be- 
cause dm-ing  all  that  time  no  question  as  to 
her  title  was  raised;  that  after  the  deed 
was  executed  she  made  substantial  improve- 
ments upon  the  property,  rented  it,  and  col- 
lected the  rents,  and  exercised  all  the  acts 
of  ownership  over  it  until  the  death  of  Keat- 
ing, December  31,  1800,  when  for  the  first 
time  she  learned  that  the  deed  was  taken  in 
his  name  absolutely,  and  that  his  heirs  and 
representatives,  the  defendants  in  this  case, 
disputed  her  title  thereto.  On  the  hearing 
in  the  cornet  below  there  did  not  seem  to  be 
any  dispute  but  that  the  complainant  fur- 
nished the  money  with  which  Peter  Keating 
purchased  the  premises  in  controversy,  but 
the  defense  was  that  the  complainant  well 
knew  that  Peter  Keating  took  the  deed  in 
his  own  name,  and  that  the  absolute  title 
to  the  premises,  during  his  lifetime,  vested 
in  him,  and  that  the  complainant  had  no 
right  to  relief,  as  she  could  not  establish  a 
trust  in  these  lands  by  parol.  The  court 
below,  after  a  hearing  in  open  coiu-t,  found 
the  complainant  was  entitled  to  the  relief 
prayed,  and  decreed  that  the  title  should 
vest  in  her. 

There  are  but  two  questions  raised  In  this 
com-t:  (1)  That  this  suit  being  brought 
against  the  estate  and  the  heirs  of  Peter 
Keating,  now  deceased,  complainant  could 
not  testify  to  matters  equally  within  the 
knowledge  of  deceased;  (2)  that  the  grant 
being  made  to  Peter  Keating,  and  the  title 
vesting  in  him  absolutely,  though  payments 
therefor  may  have  been  made  by  com- 
plainant, under  the  statute  a  trust  could  not 
be  shown  by  parol  evidence. 


The  complainant  was  called  as  a  witness, 
and  testified  in  the  case  to  many  mattei-s 
which  couM  not  have  been  within  the  knowl- 
edge of  the  deceased,  and  as  to  those  mat- 
ters her  testimony  may  be  considered.  As 
to  the  matters  which  were  equally  within 
the  knowledge  of  the  deceased,  the  rule  is 
too  w-ell  settled  to  need  the  citation  of 
authorities  that  her  testimony  cannot  be 
considered  in  determining  the  question  in- 
volved here. 

Upon  the  second  point,  section  5560,  How. 
St.,  provides:  "When  a  gi-ant  for  a  valuable 
consideration  shall  be  made  to  one  person 
and  the  consideration  therefor  shall  be 
paid  by  another,  no  use  or  trust  shall  result 
in  favor  of  the  person  by  whom  such  pay- 
ment shall  be  made;  but. the  title  shall  vest 
in  the  person  named  as  the  alienee,  subject 
only  to  the  provisions  of  the  next  section." 
This  section  stands  as  section  7,  c.  214,  en- 
titled "Of  Uses  and  Ti-usts."  By  section 
5571,  being  section  9  of  that  chapter,  it  is 
further  provided:  "The  preceding  seventh 
section  shall  not  extend  to  cases  where  the 
alienee  named  in  the  conveyance  shall  have 
taken  the  same  as  an  absolute  conveyance 
in  his  own  name  without  the  knowledge  or 
consent  of  the  person  paying  the  considera- 
tion, or  when  such  alienee  in  violation  of 
some  trust  shall  have  pm'chased  the  lands 
so  conveyed  with  money  belonging  to  an- 
other person."  In  Fisher  v.  Fobes,  22 
Mich.  4.58,  Mr.  Justice  Cooley,  speaking  of 
section  5560,  says:  "This  provision,  how- 
ever, must  be  understood  as  applicable  only 
to  those  cases  in  which  the  deed  has  assumed 
the  form  it  has  by  the  consent  of  the  party 
fm'nishing  the  considei"ation.  It  has  no 
application  to  a  case  M'here  one  has  taken  a 
deed  in  his  own  name  in  fraud  of  the  rights 
of  another,  nor  to  a  case  where,  though  no 
fraud  was  designed,  the  conveyance  has  been 
made  to  some  person  other  than  the  pur- 
chaser, without  his  consent"  In  McCreary 
V.  McCreary,  90  Mich.  478,  51  N.  W.  545, 
the  same  rule  was  laid  down,  Fisher  v. 
Fobes  being  cited  and  approved.  It  is 
therefore  well  settled  in  this  state  that  if 
Peter  Keating  took  the  deed  with  the  under- 
standing with  complainant  either  that  it  was 
to  be  executed  to  her,  or  to  himself  in  trust 
for  her,  and  then,  without  her  knowledge  or 
consent,  and  against  her  express  directions 
and  requests,  took  the  deed  in  his  own  name, 
a  coiu't  of  equity  will,  upon-  proof  of  these 
facts,  decree  the  title  in  the  complainant 
We  think  the  testimony  abundantly  shows, 
without  considering  the  testimony  of  the 
complainant  relating  to  facts  which  were 
equally  within  the  kaowledge  of  Keating, 
that  the  complainant  never  assented  that  he 
should  take  the  absolute  title  to  the  premises, 
and  that  the  com-t  below  was  not  in  error  in 
so  finding.  The  decree  below  will  be 
aflu-med. 

MONTGOMERY.    J.,     did     not     sit     The 
other  justices  coucm-red. 


CONSTRUCTIVE  TRUST. 


177 


MOORE  et  al.  v.  CRAWFORD  et  al. 

(9  Sup.  Ct.  447,  130  U.  S.  122.) 

Supreme  Court  of  the  United  States.    March  18, 
1889. 

Appeal  from  the  Circuit  Court  of  the  Unit- 
ed States  for  the  Western  District  of  Michi- 
gan. 

Appellees,  the  widow  and  heirs  of  John 
Monroe,  deceased,  filed  tlieir  bill  against  Na- 
tlianiel  D.  Moore  and  Helen  Moore,  to  corn- 
v)fcl  a  conveyance  of  the  one  undivided  sixth 
part  of  leO'acres  of  mineral  land  in  Ontona- 
gon county,  Mich.,  which  had  been  located 
by  Xatlianiel  D.  Moore,  under  an  agreement 
with  James  II.  McDonald  and  John  McKay 
that  Moore  should  have  a  one-third  interest 
in  consideration  of  his  services  in  prospect- 
ing lor  land  having  iron  ore,  and  selecting 
and  locating  that  in  question.  It  was  upon 
Moore's  application  tliat  tiie  patent  was  is- 
sued from  the  state  land-office  at  Lansing,  in 
■January,  1875,  to  McDonald  and  McKay,  the 
purcliase  money  being  furnished  by  them  and 
paid  over  by  him.  By  the  testimony  of  Moore 
and  McKay  it  v/as  established  that  Moore 
was  to  have  a  one-third  interest,  while  Mc- 
Donald admitted  that  he  was  to  have  an  in- 
terest, but  was  uncertain  whether  it  was  to 
be  one-third  or  one-fourth.  One  Mclntyre 
testified  that  the  agreement  between  Moore, 
McDonald,  and  McKay  was  in  writing,  and 
signed  m  his  presence  by  McDonald  and  Mc- 
Kay; but  he  was  not  sure  whetlier  Moore 
signed  it  or  not.  The  execution  of  such  an 
agreement  was  denied,  and  the  circuit  court 
considered  Mclntyre's  testimony  too  indefi- 
nite as  to  its  terras  to  warrant  proceeding 
upon  it.  On  the  18th  day  of  October,  1875, 
Moore,  who  was  then  unmarried,  executed 
and  delivered  to  John  Monroe  a  deed  in  fee- 
simjile,  with  covenants  of  seisin,  against  in- 
cumbrances, and  of  geneial  warranty,  for  an 
undivided  one-sixth  interest  in  said  lands, 
which  was  duly  recorded  December  20,  1875. 
The  consideration  was  $250,  of  which  Mon- 
roe paid  .$10  in  cash,  and  for  the  residue  gave 
his  promissory  note  to  Moore,  payable  one  year 
alter  its  date.  Moore  informed  Monroe  at 
the  time  that  he  had  arranged  with  McDon- 
ald and  McKay  for  a  one-tiiird  interest,  and 
that  the  deed  was  then  probably  made  out. 
Pursuant  to  their  agreement,  McDonald  and 
McKay,  some  time  in  1875,  executed  a  deed 
to  Moore  for  a  one-tiiird  interest  in  the  land, 
wliich  was  deposited  with  one  Viele,  to  be 
delivered  to  Moore  when  McDonald  and  Mc- 
Kay should  direct.  McDonald  testified  that 
Moore  was  indebted  to  him,  and  he  wished 
delivery  delayed  until  the  debt  was  arranged 
and  satisfied,  which  was  finally  effected  in 
1877.  Moore  does  not  seem  to  have  known 
about  the  execution  of  tiiis  deed,  and  it  ap- 
pears to  have  been  subsequently  lost.  Mc- 
Donald and  McKay  never  denied  Moore's 
right  to  his  interest,  but  always  admitted  it, 
and  McDonald  testifies  that  it  was  under- 
stood that  Moore  should  have  the  interest  anv 
GATES.R.P.— 12 


time  he  called  for  it.  In  December,  1880, 
McDonald  and  McKay  conveyed  an  undivid- 
ed one-tiiird  interest  in  the  land  to  Helen 
Moore,  wife  of  N.  D.  Moore,  who  requested 
the  conveyance  to  be  made  to  his  wife  for  the 
express  purpose,  as  he  admitted,  of  defeating 
the  deed  he  had  previously  given  to  Monroe 
for  one-sixth  of  the  land.  Monroe  died  in- 
testate in  Colorado  in  August,  1878,  and 
Moore,  knowing  that  his  deed  to  Monroe  liad 
been  recorded,  expected  Mrs.  Monroe  would 
make  trouble.  Xo  consideration  passed  when 
McDonald  and  McKay  executed  and  deliv- 
ered this  conveyance,  and  Mrs.  Moore  was 
not  present  when  it  was  executed,  but  she 
had  been  informed  by  her  husband  that  it 
was  to  be  made  to  her,  and  had  full  not.cc  of 
his  deed  to  Monroe.  Since  the  conveyance 
to  Helen  Moore,  X.  D.  Moore  has  substan- 
tially managed  the  property  as  if  it  were  his 
own.  Further  reference  to  the  ple;i(ling3 
and  evidence  is  made  in  the  opinion.  Hear- 
ing having  been  had  upon  bill  as  amended, 
answer,  replicatit)n,  and  proofs,  the  circuit 
court,  Judge  Sage  presiding,  delivered  its 
oi)inion,  wiiich  is  reported  in  28  Fed.  Rep. 
824,  and  decree  was  thereupon  entered  for 
conveyance  to  complainants  as  prayed,  and 
for  rents  and  profits  from  the  date  of  the  fil- 
ing of  the  bill,  less  the  amount  due  on  the 
.S240  note,  from  which  deciee  this  appeal  was 
prosecuted.  ^Irs.  Moore  having  died  pend- 
ing the  appeal,  Nafhaniel  D.  Moore,  Jr.,  her 
sole  heir  at  law,  and  John  McKay,  adminis- 
ti  ator  of  her  estate,  were  made  co-appeilants 
with  Nathaniel  D.  Moore. 

John  F.  Dilloji,  Dan  H.  J5aZZ,  and  Irciiig 
D.  Hanscom,  for  appellants.  T.  L.  Chad- 
bounie  and  L.  H.  Boutell,  for  appellees. 

Mr.  Chief  Justice  FULLER,  after  stating 
the  facts  as  above,  delivered  the  opinion  of 
the  court. 

Had  the  conveyance  of  McDonald  and  Mc- 
Kay, lodged  in  Viele's  hands,  been  actually 
delivered  to  Moore,  no  question  would  have 
arisen;  but,  that  deed  having  been  sup- 
pressed or  lost,  when  Moore  subsequently  in- 
duced McDonald  and  McKay  to  convey  to  his 
wife,  for  the  avowed  purpose  of  avoiding  the 
deed  he  had  given  Monroe,  Moore's  wife  be- 
ing fully  advised  of  the  purpose,  and  paying 
no  consiileration  for  the  conveyance,  the 
transaction  must  be  regarded  in  equity  as  if 
McDonald  and  McKay  had  conveyed  to  Moore, 
and  Moore  had  conveyed  to  his  wife,  she 
holding  in  trust  for  ^lonroeand  his  heirs  one- 
half  of  tlie  interest  conveyed  to  her,  namely, 
one-sixth  of  the  whole.  "Fraud,  indeed,  in 
the  sense  of  a  court  of  equity,  properly  in- 
cludes all  acts,  omissions,  and  concealments 
whicii  involve  a  breach  of  legal  or  equitable 
duty,  trust,  or  confidence,  justly  reposed,  and 
are  injurious  to  another,  or  by  which  an  un- 
due anti  unconscientious  advantage  is  taken 
of  another.  And  courts  of  equity  will  not 
only  interfere  in  cases  of  fraud  to  set  aside 
acts  done,  but  they  will  also,  if  acts  have  by 


178 


ESTATES   IN   REAL  PROPERTY. 


fraud  been  prevented  from  being  done  by 
the  parties,  interfere  and  treat  tlie  case  ex- 
actly as  if  the  acts  had  been  done."  1  Story, 
Eq.' Jur.  §  187.  Whenever  the  legal  title  to 
property  is  obtained  through  means  or  under 
circumstances  "which  render  it  unconscien- 
tious for  the  holder  of  the  legal  title  to  retain 
and  enjoy  the  beneficial  interest,  equity  im- 
presses a  constructive  trust  on  the  property 
thus  acquired  in  favor  of  the  one  who  is 
truly  and  equitably  entitled  to  the  same,  al- 
though he  may  never,  perhaps,  have  had  any 
legal  estate  therein;  and  a  court  of  equity 
has  jurisdiction  to  reach  the  property,  either 
in  the  hands  of  the  original  wrong-doer,  or  in 
the  hands  of  any  subsequent  holder,  until  a 
purchaser  of  it  in  good  faith  and  without  no- 
tice acquires  a  higher  right,  and  takes  the 
property  relieved  from  the  trust."  2  Pom. 
Eq.  Jur.  §  1053. 

In  Huxley  v.  Rice,  40  Mich.  82,  it  is  said: 
"It  is  the  settled  doctrine  of  the  court  that 
where  the  conveyance  is  obtained  for  ends 
which  it  regards  as  fraudulent,  or  under  cir- 
cumstances it  considers  as  fraudulent  or  op- 
pressive, by  intent  or  immediate  consequence, 
the  party  deriving  title  under  it  will  be  con- 
verted into  a  trustee  in  case  that  construc- 
tion is  needful  for  the  purpose  of  administer- 
ing adequate  relief;  and  the  setting  up  the 
statute  of  frauds  by  a  party  guilty  of  the 
fraud  or  mistake,  in  order  to  bar  the  court 
from  effective  interference  with  his  wrong- 
doing, will  not  hinder  it  from  forcing  on  his 
conscience  this  character  as  a  means  to  baffle 
liis  injustice  or  its  efl'ects."  The  fraud  of 
Avliich  Moore  was  guilty  was  in  preventing 
the  conveyance  to  himself,  which  would  liave 
inured  to  Monroe,  and  in  obtaining  it  to  his 
wife,  so  as  to  reap  the  benefit  which  belonged 
to  his  grantee.  Mrs.  Moore  stands  in  her 
husband's  shoes,  and,  by  accepting  with 
knowledge,  is  to  be  treated  as  a  party  to  his 
fraud  and  profiting  by  it,  or,  as  a  mere  vol- 
unteer, assisting  him  to  perpetrate  the  fraud 
and  to  profit  by  it,  and  is  hence  to  be  held, 
as  he  could  have  been,  a  trustee  ea;  maleficio. 
Nor  do  we  see  that  ttie  statute  of  frauds  can 
be  invoked  as  a  defense.  The  fact  tiiat  Mc- 
Donald and  McKay  could  not  have  been  com- 
pelled to  convey  to  Moore  because  of  the 
want  of  written  evidence  of  their  agreement 
to  do  so  does  not  entitle  Mrs.  Moore  to  object 
that  they  were  not  legally  bound  to  do  what 
they  w^ere  morally,  they  having  kept  tlieir 
faith  with  Moore  by  conveying  under  his  di- 
rections. If  McDonald  and  McKay  had  vio- 
lated their  agreement  with  Moore,  and  in 
furtherance  of  such  violation  had  conveyed 
to  a  stranger,  such  grantee  might  have  de- 
fended, even  though  cognizant  of  the  verbal 
agreement  of  McDonald  and  McKay  to  con- 
vey to  Moore;  but  McDonald  and  McKay 
never  repudiated  their  obligation  to  Moore, 
and  conveyed  as  lie  directed,  thereby,  so  far 
as  he  was  concerned,  carrying  out  the  trust 
upon  which  they  held  one-third  of  the  land. 
There  is  "no  rule  of  law  which  prevents  a 
party  from  performing  a  promise  which  could 


not  be  legally  enforced,  or  which  will  per- 
mit a  party  morally,  but  not  legally,  bound 
to  do  a  certain  act  or  thing,  upon  the  act  or 
thing  being  done,  to  recall  it  to  the  prejudice 
of  the  promisee,  on  the  plea  that  the  prom- 
ise, while  still  executory,  could  not,  by  rea- 
son of  some  technical  rule  of  law,  have  been 
enforced  by  action."  Newman  v.  Nellis,  97 
N.  Y.  285,  291:  Fatton  v.  Chamberlain,  44 
Mich.  5,  5  N.  W.  Rep.  1037;  Barber  v.  Mil- 
ner,  43  Mich.  248,  5  N.  W.  Rep.  92.  Mrs. 
Moore  did  not  take  as  a  stranger  would  have 
taken,  but  took  in  execution  of  the  agree- 
ment with  her  husband.  Clearly,  then,  she 
cannot  be  permitted  to  set  up  a  statutory  de- 
fense personal  to  McDonald  and  McKay,  w  ho 
could  not,  in  fulfilling  their  agreement,  trans- 
fer an  excuse  for  non-fulfilment.  It  is  un- 
doubtedly the  rule  that  the  breach  of  a  parol 
promise  or  trust  as  to  an  interest  in  land  does 
not  constitute  sucli  Iraud  as  will  take  a  case 
out  of  the  statute,  (Montacute  v.  ^Maxwell,  1 
P.  Wms.  620;  Rogers  v.  Simons,  55  III.  76; 
Peckham  v.  Balch.  49  Mich.  179,  13  N.  W. 
Rep.  506;)  but  here  McDonald  and  McKay  did 
not  fail  to  perform  their  promise,  and,  when 
they  performed,  their  grantee  took  one-half 
of  the  one-third,  charged  with  a  trust  to  liold 
it  for  Monroe  by  reason  of  the  deed  of  Moore 
to  Monroe,  under  the  covenants  of  which 
Moore  was  equitably  bound,  when  he  ac- 
quired the  title,  to  hold  it  for  Monroe's  ben- 
efit. That  deed  contained  a  general  covenant 
of  warranty. 

In  Irvine  v.  Irvine,  9  Wall.  617,  625,  Mr. 
Justice  Strong,  speaking  for  the  court,  said: 
"It  is  a  general  rule  that  when  one  makes  a 
deed  of  land,  covenanting  tlierein  that  he  is 
the  owner,  and  subsequently  acquires  an  out- 
standing and  adverse  title,  his  new  acquisi- 
tion inures  to  the  benefit  of  his  grantee,  on 
the  principle  of  estoppel."  And  in  Van 
Rensselaer  v.  Kearney,  11  How.  297,  it  was 
pointed  out  that  it  is  not  always  necessary 
that  a  deed  should  contain  covenants  of  war- 
ranty to  operate  by  way  of  estoppel  upon  tiie 
grantor  from  setting  up  the  after-acquired 
interest  against  his  grantee,  the  court  saying 
(page  325)  "that,  whatever  may  be  the  form 
or  nature  of  the  conveyance  used  to  pass  real 
property,  if  the  grantor  sets  forth  on  the  face 
of  the  instrument,  by  way  of  recital  or  aver- 
ment, that  he  is  seised  or  possessed  of  a  par- 
ticular estate  in  the  premises,  and  which  es- 
tate the  deed  purports  to  convey,  or,  what  is 
the  same  thing,  if  the  seisin  or  possession  of 
a  particular  estate  is  affirmed  in  the  deed, 
either  in  express  terms  or  by  necessary  im- 
plication, the  grantor  and  all  persons  in  priv- 
ity with  Jiim  shall  be  estopped  from  ever  aft- 
erwards denying  that  he  was  so  seised  and 
possessed  at  the  time  he  made  the  convey- 
ance. The  estoppel  works  upon  the  estate 
and  binds  an  after-acquired  title  as  between 
parties  and  privies."  The  rule  is  thus  stated 
in  Smith  v.  Williams,  44  Mich.  242.  6  N.  W. 
Rep.  662:  "It  is  not  disputed  that  a  deed 
with  covenants  of  seisin  and  title  would  be 
effectual  to  give  the  grantee  the  benefit  of  an 


COXSTRUCTIVE  TRI'ST. 


179 


after-acquired  title,  under  tlie  doctrine  of  es- 
toppel; but  these  covenants  were  absent  from 
the  deed  in  question,  and  the  covenant  of 
quiet  enjoyment,  it  is  said,  would  nut  have  a 
like  effect.  No  reason  is  given  for  any  such 
distinction,  and  it  is  not  recognized  by  the 
authorities.  When  one  assumes,  by  his  deed, 
to  convey  a  title,  and  by  any  form  of  assur- 
ance obligates  liimself  to  protect  the  grantee 
in  tlie  enjoyment  of  that  which  the  deed  pur- 
ports to  give  liim,  he  will  not  be  suffered  aft- 
erwards to  acquire  or  assert  a  title,  and  turn 
his  grantee  over  to  a  suit  upon  his  covenants 
for  redress.  The  short  and  effectual  method 
of  redress  is  to  deny  him  the  liberty  of  set- 
ting up  his  after-acquired  title  as  against  his 
previous  conveyance.  This  is  merely  refus- 
ing him  the  countenance  and  assistance  of 
the  courts  in  breaking  the  assurance  which 
his  covenants  liad  given."  Conceding  that 
a  covenant  of  general  warranty  operates  by 
way  of  rebutter  to  preclude  tlie  grantor  and 
his  heirs  from  setting  up  an  after-acquired 
title,  rather  than  to  actually  transfer  tlie  new 
estate  itself,  the  subsequent  acquisition  cre- 
ates an  equity  for  a  conveyance  in  order  to 
make  the  prior  deed  effectual.  Noel  v.  Bew- 
ley,  3  Sim.  103,  116;  Smith  v.  Baker.  1 
Younge  &  C.  Ch.  223. 

In  McWilliams  v.  Nisly,  2  Serg.  &  R.  507, 
515,  TiLGHMAN,  C.  J.,  said  that  equity  will 
enforce  a  covenant  to  convey  an  estate  when- 
ever it  shall  be  acquired  by  the  covenantor, 
and  that  the  case  is  not  the  less  strong  where 
there  is  an  absolute  conveyance;  and  this  is 
cited  by  Strong,  .J.,  in  Bayler  v.  Com.,  40 
Pa.  St.  37,  43,  wherein  it  is  held  that  "though 
a  conveyance  of  an  expectancy,  as  such,  is 
imptissible  at  law,  it  may  be  enforced  inequi- 
ty as  an  executory  agreement  to  convey,  if  it 
be  sustained  by  a  sufficient  consideration," 
So  Gibson,  J.,  in  Chew  v.  Barnet,  11  Serg. 
&  R.  389,  392,  says:  "In  the  Choo  of  a  con- 
veyance before  the  grantor  has  acquired  title, 
tiie  h'gal  estate  is  not  transferred  by  the  stat- 
ute of  uses,  but  tlie  conveyance  operates,  as 
I  have  said,  as  an  agreement,  which  the 
grantee  is  entitled  to  have  executed  in  chan- 
cer}', as  was  decided  in  Whitfield  v.  Fausset,  1 
A'es.  Sr.  391."  In  Way  v.  Arnold,  18  Ga.  181, 
193,  Pyncheon,  having  no  title,  sold  to  Way 
with  warranty,  and,  subsequently  acquiring 
title,  sold  to  Arnold.  It  was  held  that  "if 
Pyncheon,  upon  consideration,  conveyed  this 
subsequently-acquired  interest,  and  such  was 
his  intention,  equity  will  decree  a  title  to  the 
after-acquired  estate,  and  the  second  gi-antee, 
Arnold,  provided  he  purchased  with  notice, 
would  be  affected  by  said  notice,  and  could 
not  conscientiously  hold  the  land  in  dispute. " 
In  Goodson  v.  Beacham,  24  Ga.  150,  Mims, 
by  warranty  deed,  conveyed  to  Beacham, 
Mims  having  no  title  at  the  time,  but  subse- 
quently acquiring  it.  Goodson  claimed  title 
under  an  execution  sale;  and  the  court  say, 
(page  153:)  "Mims,  when  he  made  the  deed 
to  Beacham,  had  no  title,  but  his  deed  was 
an  attempt  to  convey  the  fee,  and  it  was  a 
deed  with  a  warranty.     This  shows — First, 


that  it  was  the  intention  that  the  land — tlie 
whole  interest  in  the  land — should  be  con- 
veyed to  Beacham ;  secondly,  that  Beacham 
had  paid  the  purchase  money.  Such  being 
the  intention,  the  consequence  would  be  that, 
if  Mims  should  afterwards  acquire  the  title, 
he  would  be  bound  to  convey  it  to  Beacham, 
as  much  so  as  if  the  contract  were  one  stand- 
ing in  the  form  of  a  bond  for  titles.  Peihaps 
this  would  be  the  consequence,  even  without 
the  warrantv.  Tavlor  v.  Dab.ir,  2  Ca3.  Ch. 
212, 1  Cas.  cii.  274;Vright  v.  Wright,  1  Ves. 
Sr.  409;  Noel  v.  Bewley,  3 Sim.  103;  Smith  v. 
Baker,  1  Younge  &  C.  Ch.  223;  .Tones  v. 
Kearney,  1  Dru.  &  War.  159,  cited  in  note,  2 
Rawle,  Cov.  438;  Sugd.  Vend.  c.  8.  §  2,  p. 
33;  Rawle,  Cov.  448." 

Treating  his  deed  as  a  covenant  to  convey, 
Moore  would  have  been  precluded  from  deny- 
ing the  title  if  the  deed  of  McDonald  and 
McKay  had  been  made  directly  to  him;  and 
if,  this  being  so,  he  could  not  call  in  question 
his  own  grant,  he  could  not,  by  interposing 
a  third  person,  taking  without  consideration, 
and  to  enable  the  fraud  to  be  carried  into  ef- 
fect, in  that  way  defeat  it.  It  was  the  duty 
of  Moore  to  take  the  conveyance  for  the  bene- 
fit of  ,^'onroe,  and  Monroe  had  the  right  to 
the  enforcement  of  that  duty  in  equity,  in 
view  of  tiie  fraudulent  device  by  which  Moore 
attempted  to  avoid  its  discharge.  The  fraud 
was  of  such  character  as  enables  a  court  of 
equity  to  decree  the  relief  as  against  the  cov- 
enantor, not  only  under  his  own  name,  but 
under  the  name  of  his  wife;  and  it  will  not 
do,  under  such  circumstances,  to  say  that 
Monroe  is  remitted  to  an  action  for  damages 
for  breach  of  the  convenant  of  warranty,  be- 
cause Moore  not  only  had  no  title  at  the  time 
but  neverafterwardsacquired  title;  for  when 
the  conveyance  was  made  to  Mrs.  ^loore  it 
was,  as  we  have  held,  as  if  the  title  had  been 
acquired  by  Moore  himself.  Nor  is  this  a 
case  wheiein  specitic  performance  of  the  cov- 
enant of  warranty  is  sought  upon  failure  of 
title  in  the  abSv^nce  of  fraud.  It  is  insisted 
that,  if  the  deed  be  reganled  as  a  contract  to 
convey,  while  in  such  case  the  heir  would  or- 
dinarily be  entitled  to  a  conveyance  from  the 
vendor,  yet  if  the  vendor  had  no  title,  or  if 
the  vendee  was  not  bound  by  the  contract  at 
the  time  of  his  death,  the  heir  is  not  so  en- 
titled; but  it  appears  from  this  record  that 
Moore  could  have  obtained  the  title  in  Mon- 
roL''s  life-time,  and  the  latter  could  have  been 
comi  elled  to  perform  on  his  part,  so  that  the 
contract  was  biniiing  at  the  time  of  Monroe's 
death,  ami  his  heirs  had  the  right  to  compel 
specitic  pi'rformance.  The  vendor,  therefore, 
would  iKit  be  liable  in  one  action  to  the  estate, 
and  in  another  to  the  heirs. 

Monroe  died  in  August,  1878.  Moore  and 
McDonald  had  settled  in  1877  the  matters 
which  ^fcDonald  had  given  as  reasons  for  not 
conveying,  or  for  suspending  the  delivery  of 
the  deed  placed  in  the  hands  of  Yiele,  and 
McDonald  was  then  ready  to  convey  to  Moore, 
which  McKay  had  always  been.  Moore  was 
able  to  perform  before  Monroe's  death,  and 


180 


ESTATES   IN   REAL  PROPERTY. 


the  right  to  compel  performance  which  Mon- 
roe had  his  heirs  can  enforce. 

It  is  strenuously  urged  tl)at  the  deed  of 
Moore  to  Monroe  was  set  aside  by  agreement, 
and   the  purchase  abandcmed  by  the  latter. 
We  agree  with  the  learned  judge  of  the  circuit 
court  in  the  conclusion  at  which  he  arrived  in 
disposing  of  this  contention.     The  evidence 
to  make  out  such  rescission  practically  con- 
sists  of  the  testimony  of  defendant  N.    D. 
Moore,  given  on  his  own  behalf.     It  is  only 
when  an  oral  agreement  is  clearly  and  satis- 
factorily proven  by  testimony  above  suspicion 
and  beyond  reasonable  doubt  that  it  will  be 
enforced  to  establish  rights  in  land  at  vari- 
ance with  the  muniments  of  title,  and  it  is 
open  to  question  "  whether,  in  any  case,  after 
the  decease  of  the  grantee,  the  unaided  testi- 
mony of  the  grantor  alone,  however  intelli- 
gible and  credible  he  may  be  as  a  witness, 
should  be  held  sufficient  to  set  aside  and  in- 
validate the  title  claimed  under  it."  Kent  v. 
Lasley,  24  Wis.  654.     "Where  a  written  in- 
strument is  sought  to  be  reformed  upon  the 
ground  that  by  mistake  it  does  not  correctly 
set  forth  the  intention  of  the  parties;  or  where 
the  declaration  of  the  mortgagor  at  the  time 
he  executed  the  mortgage,  that  the  equity  of 
redemption  should  pass  to  the  mortgagee  [is 
relied  on;]  or  wliere  it  is  insisted  that  a  mort- 
gagor, by  a  subsequent  parol  agreement,  sur- 
rendered his  rights,     *     *     *     in  each  case 
the  burden  rests   upon  the  moving  party  of 
overcoming  the  strong  presumption  arising 
from  the  terms  of  a  written  instrument.     If 
the  proofs  are  doubtful  and  unsatisfactory — 
if  there  is  a  failure  to  overcome  this  presump- 
tion bytestimony  entirely  plain  and  convinc- 
ing beyond  reasonable  controversy — the  writ- 
ing will  be  held  to  express  correctly  the  in- 
tention of  the  parties.     A  judgment  of  the 
court,  a  deliberate  deed  or  writing,  are  of  too 
much  solemnity  to  be  brushed  away  by  loose 
and    inconclusive   evidence."     Howland    v. 
]5lake,  97  U.  S.  624,  626.  Tested  by  this  rule, 
the  evidence  is  manifestly  insufficient  to  de- 
feat the  deed  from  Moore  to  Monroe.    It  must 
be  conceded  that  the  party  interposing  such 
a  defense  should  be  able  to  set  it  up   with 
reasonable  accuracy  in   his   pleadings,  and 
Moore's   statement   on    the  stand  varies  so 
much  from  that  given  in  his  answer  as  to 
make  it  impossible  to  indulge   in  any   pre- 
sumptions in  its  favor.     The  circuit   court 
justly  comments  on  this  contlict  between  an- 
swer and  testimony  (28  Fed.  Rep.  831;)  but 
that  ground  need  not  be  minutely  gone  over 
again  here. 

The  consideration  for  the  one-sixth  inter- 
est was  $250, — 610  in  cash,  and  a  note  for 
$(240. 

Immediately  before  the  purchase  of  the 
hmd  in  controversy  Monroe  had  let  Moore 
have  money  to  enter  a  particular  40  acres 
which  he  represented  had  such  indications  of 
mineral  as  showed  it  would  be  valuable. 
Moore  did  not  make  the  entry  because,  he 
says,  the  land  had  been  previously  entered, 
but  he  did  not  return  the  money  to  Monroe. 


The  40  acres  was  school  land,  and  the  mini- 
mum price  of  school  lands  was  fixed  by  stat^ 
ute  at  $4  per  acre,  (1  Comp.  Laws  Mich. 
1872,  p.  1251,)  or,  for  40  acres,  $160;  and  the 
presumption,  in  the  absence  of  evidence  to 
the  contrary,  would  be  that  this  was  the  sum 
Monroe  let  Moore  have,  the  purpose  to  make 
the  particular  entry  being  conceded.     Now, 
Moore's   story  as   to   the  rescission  is  that 
Monroe  came  to  him  and  "wanted  me  to  pay 
him  the  money  that  he  had  given  me  to  enter 
that  land,"  and  that  in  the  conversation  that 
ensued  reference  was  made  to  the  fact  that 
Moore  had  not  yet  received  a  deed  to  the  Mc- 
Donald and  McKay  land,  and  it  was  finally 
agreed  that  Moore  should  give  Monroe  his 
note  for  .$160  and  surrender  Monroe's  note 
for  $240,  and  that  Monroe  should  give  up  his 
deed;    and    Moore   claims   that   the   money 
which  Monroe  had  given   him  to  enter  tiie 
40  acres  of  school  land  was  $150,  and  that 
the  $160  note  was  made  up  of  that  $150  and 
the  $10  which  had  been  paid  on  the  purchase. 
When  confronted  with  the  fact  that  he  had 
sworn  that  Monroe  gave  him  the  money  to 
enter  40  acres  of  scliool  land,  the  minimum 
price  of  which  was  $160,  his  exphmatiou  is 
that,  as  Monroe  had  to  pay  a  discount  to  get 
the  money,  "1  told  him  that  I  would  throw 
off  the  $10  on   that  account,"  though  why 
Monroe   could    not  borrow  .$160  as  well  as 
$150,  if  he  borrowed  at  all,  or  why  Mooie 
should  "throw  off"  $10  to  the  party  who  ad- 
vanced tiie  whole  cajjital,  or  whether  Moore 
had  $10  to  make  up  the  deficiency,  (and  he 
admits  that  he  was  then  quite  impecunious,) 
does  not  appear.     Wliether  the  money  Mon- 
roe had  let  Moore  have  was  $150  or  $160, 
and  whether  the  note  included  the  $10  paid 
on  the  one-sixth  interest,  depends  on  the  tes- 
timony of  Moore.      Mrs.  Monroe  found  the 
note  among  her  husband's  papers  after  his 
death,  and  knew  nothing  about  it  except  that 
he  told  her  that  it  was  for  money  he  had 
loanfd  Moore.     The  note  itself  was  not  pro- 
duced.    Payments  Jiad  been  made  upon  it  in 
Monroe's  life-time,  but  none  afterwards,  un- 
til 1881,  when  $60  was  paid  to  Mrs.  Monroe, 
who  cannot  remember  what  the  amount  of 
the  note  was;  and  this  payment  was  alter 
McDonald  and  JMcKay  had  conveyed  to  Mrs. 
Moore,  at  the  request  of  Moore,  for  tlie  pur- 
pose of  cutting  out  the  deed  to  Monroe,  and 
after  the  land  had  commenced  to  increase  in 
value,  to  Moore's  knowledge,  but  not  to  that 
of  Mrs.  Monroe.     When  it  was  made  not  a 
word  was  said  to  Mrs.  ^lonroe  about  the  out- 
staniiing  deed  to  Monroe,  either  as  to  hav- 
ing it  sent  back  or  having  a  quitclaim  given, 
and  it  is  quite  clear  that  she  was  wholly  un- 
aware of  any  connection  between  that  note 
and  the  land  in  controversy,  if  any  such  con- 
nection  in  fact  existed,  as   it  would    seem 
there  did   not,   if   the   amount   Monroe   let 
Moore  have  to  make  the  entry  was  $160. 
Some  small  payments  had  been  made  on  this 
note  to  a  justice  of  the  peace,  in  whose 
hands  it  had  been  lodged  for  collection.     He 
was  not  sworn  as  a  witness,  but  Moure  is 


CONSTRUCTIVE  TRUST. 


181 


"inclined  to  think  that  he  is  dead."     Under 
the  circumstances,  it  is  remarlvable  that  the 
note  when  taken  up  by  Moure  was  not  pre- 
served by  him,  and  is  not  ])ut  in  evidence. 
The  money  was  not  in  fact  loaned  to  Moore 
by  Monroe,  but  given  to  him  lor  a  particular 
purpose,  and,  when  tliat  purpose  could  not 
be  effectuated,  should  have  been  returned  at 
once.     Monroe  is  dead.     Is  it  not  dangerous 
to  take  Moore's  testimony,  in  face  oi' these 
facts,  as  establishing  that  the  .$160  covered 
the  .'irlO  forming  part  of  the  consideration  of 
the     purchase    under    consideration?       We 
think  it  is,  and  particularly  as  in  his  answer 
Moore  does  not  set  up  that  the  money  was 
given  him  for  the  entry  of  a  specified  tract 
of  40  acres,  nor  state  any  reason  why  it  was 
.S150  instead  of  $160,  but   says  the  money 
was  furnislied  by  Monroe  to  enter  land,  "if 
he  should  know  of  any  that  was  desiraV)le." 
Equally  unsatisfactory  is  the  evidence  as 
to  Monroe's  note  for  .$240.    ISIoore  alleges  in 
his  answer  that  it  was  part  of  the  agreement 
to  rescind  that  he  should  cause  this  note  to 
be  surrendered  to  Monroe,  and  that  one  .John 
McKay,  in  whose  possession  it  was,  "as  he 
had  been  previously  requested  by  said  Na- 
thaniel  D.    Moore,"  delivered    the   note   to 
Mrs.  Monroe,  and  it  was  canceled;  but  it  is 
not  to  be  questioned,  upon  the  evidence,  that 
the  note  was  handed  to  Mrs.  Monroe,  not  at 
the  request  of  Moore  at  all,  who  knew  noth- 
ing about  it  until  a  year,  or  perhaps  nearly 
six  years,  afterwards,  but  at  her  solicitation; 
and  it  was  not  only  not  canceled,  but  care- 
fully preserved,  and  produced  upon  the  trial, 
— a  fact  inconsistent  with  a  rescission  to  be 
accomplished  by  its  destruction,  but  entirely 
in  accordance  with  Mrs.  Monroe's  testimony 
that  her  getting  the  note  was  accidental,  and 
that,  as  came  out  on  her  cross-examination, 
wlien  she  showed  it  to  her  husband,  he  told 
her  "to  put  it  by."    Such  a  direction  on  his 
part  is  irreconcilable  with  the  theory  that  he 
had  sent  her  to  the  McKays  for  the  note  be- 
cause  the   bargain   had    l)een   declared   off, 
while  it  sustains  the  view  that  he  had  no  in- 
tention to  tlirow  up  the  purchase.    This  note 
had  been  given  to  William  McKay,  accord- 
ing to  Moore,  to  raise  money  on;  failing  in 
which,  William  had  left  it  with  his  brother 
John,  or  his  wife,  who  testifies  he  gave  it  to 
lier  "'to  keep,  or  to  give  back  to  Mrs.  Craw- 
ford,  (then   Mrs.  Monroe,)   or  to   collect." 
Mrs.  McKay  was  Mrs.  Monroe's  sister,  and 
gave  her  the  note,  cautioning  her  that  she 
must  take  care  of  it,  so  as  to  produce  it  in 
case  it  was  asked  for  by  William  McKay. 
This  was  in  .July,  1876,  but  Moore  fixes  the 
date  of  the  conversation  with  Monroe  as  in 
August  or  September,  or,  as   he  finally  be- 
lieves, early  in  October,  1876,  which,  if  true, 
would  show  that  Mrs.  Monroe's  possession 
of  the  note  had  nothing  whatever  to  do  with 
an  agreement  that  it  should  be  surrendered. 
Indeed,  Moore  does  not  contend  that  it  had, 
but  testifies  that  Monroe  said  he  could  get 
the  note  from  the  McKays,  whom,  however, 
Moore  does  not  pretend  he  directtd  to  deliver 


it.     There  is  a  direct  confiict  between  Mrs. 
Crawford  and  the  McKays  as  to  her  state- 
ments at  the  time  she  took  tiie  note;  but  we 
ai'e  not  inclined,  therefore,  to  reject  her  ac- 
count of  the  transaction,  so  far  as  bearing 
upon  whether  she  had  autliority  to  act  for 
her  husband  on  that  occasion  or  not.    Grant- 
ing that  Mrs.  Monroe  was  desirous  of  getting 
the  note,  because  she  feared  Monroe  would 
never  obtain  title,  and  considered   Moore's 
deed  worthless,  this  did   not  bind  Munro!', 
and  her  statements  could  not  be  used  for  tliat 
purpose.     It  should  further  be  observed  that, 
while  Moore  avers  in  his  answer,  which  he 
subscribed,  that  Monroe  was  to  quitclaim  to 
him,  he  states  in  his  testimony  that  Monroe 
said  he  had  not  recorded  the  deed,  and  woidd 
send  it  back,  althougli  the  evidence  discloses 
it  was  recorded  Dc'cember  20,  1875;  and  also 
that,  though  Moore  and  Monroe  lived  at  the 
time   within  three  miles  of  each  other,  yet 
Moore  never  asked  Monroe  either  to  quit- 
claim or  return  the  deed,  now  giving  as  an 
excuse  that  he  did  not  wish  "to  stir  it  up 
more  than  was  necessary,"  and  did  not  wish 
to  urge  him  while  the  other  note  remained 
unpaid.     If  he  was  not  entitled  to  demand  a 
release   until  he  had  paid  the  8160  note,  it 
would  hardly  be  just  to  allow  him  to  cease 
paying,   and  not  resume  until  years   after, 
when  the  land  had  increased  in  value,  and 
Monroe  was  in  his  grave,  and  then  treat  sucli 
payment  to  Mrs.  Monroe,  though  he  kept  her 
in  ignorance  of  any  connection  between   it 
and  the  land,  as  performance  of  the  alleged 
agreement  of  five  years  before. 

Upon  a  careful  examination  of  the  evi- 
dence, it  amounts  to  no  moie  than  this: 
Monroe  expected  and  desired  to  obtain  the 
land.  He  found  that  McDonald  and  McKay 
had  not  made  a  deed  to  ISIoore,  and  doubt 
was  expressed  whether  they  ever  would.  He 
wished  to  collect  the  money  which  JMoore 
had  wrongfully  kept,  and  which  had  no  re- 
lation to  the  other  transaction.  He  retained 
possession  of  the  $240  note,  so  that  Moore 
could  not  make  use  of  it;  not  intending  to 
cancel  it,  but  to  hold  it  for  payment  when 
Moore  obtained  the  title.  In  accepting  pay- 
ments on  the  $160  note,  he  was  only  receiv- 
ing what  Moore  originally  owed  him,  assum- 
ing that  the  $10  was  not  included.  If 
there  ever  was  such  an  arrangement  as 
contended  for,  it  was  evidently  not  to  be  car- 
ried out  on  the  part  of  one  unless  or  until 
carried  out  by  the  other,  and  was  not  car- 
ried out  by  either,  and  the  payment  of  tlie 
$60  to  Mrs.  Monroe,  ignorant  as  she  was 
of  the  facts,  cannot  be  regarded  as  accept- 
ance of  performance.  In  any  point  of  view 
in  wiiich  this  eviiience  can  be  considered,  we 
do  not  feel  justified  in  denying  complainants' 
relief  upon  the  ground  of  an  abandonment 
of  the  deed  of  Moore  to  Monroe.  In  our 
judgment,  the  defense  of  laches  is  not  made 
out,  even  if  the  minority  of  the  heirs  did  not 
preclude  it.  The  deed  of  McDonald  and 
McKay  to  Helen  Moore  is  dated  December 
16,  1880,  and  was  recorded  March  16,  1881. 


182 


ESTATES   IN   REAL  PROPERTY. 


During  all  this  time  Mrs.  Monroe  and  her 
children  were  living  in  Canada.  Mrs.  Mon- 
roe, when  on  a  visit  to  Hoiigliton  county,  in 
the  summer  of  1881,  first  learned  that  Moore 
disputed  their  title,  and  in  the  fall  of  that 
year  she  was  advised  by  Mr.  McKay  to  "hire 
a  lawyer  or  attorney."  She  did  so,  and  he 
wrote  a  letter  to  Moore,  informing  him  of 
complainants'  claim.  Moore  testilies  as  to 
its  receipt  that  "it  must  have  been  in  the  fall 
of  1881,  or  in  the  spring  of  1882.  I  am  not 
sure  of  it." 

February  8,  1882,  this  suit  was  com- 
menced in  the  circuit  court  for  Ontonagon 
county,  Mich.  This  cannot  be  held  to  be 
unreasonable  delay.  The  answer  of  defend- 
ants averred:  "It  is  only  since  said  [min- 
eral] discoveries,  made  at  the  expense  of 
these  defendants  and  said  McDonald  and  Mc- 
Kay, that  these  complainants  have  claimed 
to  have  any  interest  therein;"  but  all  that 
was  done  in  developing  the  land  was  by  the 
C''ami)ria  Iron  &  Steel  Company,  and  no  act- 
ual discoveries  of  ore  had  been  made  before 
the  bill  was  filed.  Moore  is  asked  by  his 
counsel,  and  answers  as  follows:  ''Question. 
Wlien  was  it  first  ascertained  that  the  prop- 
erty had  value  beyond  what  you  knew  of  at 
the  time  you  first  went  over  it  for  iron  ore? 
Answer.  The  spring  of  '82  was  the  first  de- 
velopments that  was  made  on  that  property 
bv  the  Cambria  Iron  &  Steel  Company. 
They  worked  consiiierably  on  it  in  '81,  but 
hadn't  shown  up  anything  until  the  spring 
of '82."  McDonald  testifies:  "Weletanoi> 
tion  to  the  Cambria  Iron  <fe  Steel  Company 
of  Johnstown,  Pa.,  to  mine  ore  if  they  could 
find  it;  gave  them  a  privilege  of  exploring 
for  iron.  If  they  found  iron  they  was  to 
pay  us  so  much  for  the  iron.  *  *  *  That 
must  have  been  in '81.  *  *  *  $.  About 
wiiat  time  was  it  that  they  first  developed 
mineral  value  there;  that  is,  to  show  that 
there  was  mineral  value  there?  A.  AVell, 
in  the  spring.  I  couldn't  say  what  time  that 
was,  but  it  must  have  been  in  the  following 
spring;  *  *  *  the  following  spring  aft- 
er we  gave  the  option."  While  tliis  shows 
that  Mrs.  Monroe  had  no  reason  to  suppose 
tlie  land  had  increased  in  value  when  she  be- 
gan lier  suit,  Moore,  from  his  knowledge  of 
tiie  property,  and  his  being  on  the  ground, 
must  have  been  aware,  wlien  he  paid  Mrs. 
JNIonroe,  and  probably  as  early  as  when  the 
deed  was  given  to  his  wife,  that  the  proper- 
ty was  likely  to  improve  in  value,  lie  says 
the  option  to  the  Cambria  Iron  &  Steel  Com- 
pany was  in  1880  or  1881,  and  if  it  was  after 
his  wife  got  her  deed,  it  was  shortly  after. 
The  inevitable  inference  from  his  conduct 
is  that  he  did  not  ask  McDonald  and  McKay 
to  convey,  and  did  not  propose  to  pay  up  the 
note  until  roused  into  activity  by  the  pros- 
pect of  gain. 

The  bill  and  amendments  state  the  deed 
from  JNIoore  to  Monroe  of  one-sixth  of  the 
land;  that  JMcDonald  and  McKay  Iield  "an 
undivided  one-third  thereof  in  trust  lor  the 
said  Nat.  D.  Moore  by  an  arrangement  be- 


tween the  said  McDonald  and  McKay  on  tlie 
one  side,  and  the  said  Moore  on  the  otlier, 
entered  into  before  or  at  the  time  the  said 
McDonald  and  McKay  acquired  said  title;" 
that  tiie  conveyances  by  McDonald  and  Mc- 
Kay to  Helen  Moore  "were  made  at  the  in- 
stigation of  said  Nat.  D.  Moore,  with  the  in- 
tent and  purpose  of  defrauding  these  com- 
plainants out  of  the  estate  in  fee  conveyed 
and  assured,  and  intended  to  be  conveyed 
and  assured,  to  the  said  John  Monroe  by  the 
said  Nat.  D.  Moore  as  aforesaid,  by  lodging 
the  apparent  legal  title  in  his  wife's  name, 
but  for  his  own  benelit  and  use;"  "tliat  the 
said  Helen  Moore  paid  no  consideration  for 
said  conveyance,  and  tliat  said  interest  vest- 
ed in  her  as  trustee  for  her  husband,  Nat. 
D.  Moore,  and  for  the  said  John  Monroe, 
his  heirs  and  assigns;"  that  the  deed  to  Hel- 
en was  procured  by  said  Nat.  D.  and  said 
Helen  to  be  made  "for  the  purpose  of  cut- 
ting out  complainants'  title  to  the  undivided 
one-sixth  of  the  said  land  and  of  depriving 
them  thereof;"  that  the  transaction  "is  and 
ought  to  be  held  to  be  of  the  same  effect  as  if 
the  said  McDonald  and  McKay  and  their 
wives  had  conveyed  said  interest  directly  to 
the  said  Nat.  D.  Moore,  instead  of  to  his 
wife,  and  that  the  said  Moores,  husband  and 
wife,  ought  to  be  and  are  estopped  by  the 
terms  of  Moore's  said  conveyance  to  Moiiroe 
from  claiming  or  asserting  that,  as  to  the 
one-sixth  interest  in  said  land  conveyed  by 
the  said  Nat.  D.  Moore  to  the  said  John 
Monroe,  the  said  Helen  Moore  has  any  title 
or  interest  therein  as  against  said  comi-la  n- 
ants;  and  tliey  further  charge  that  as  to  said 
one-sixth  interest  the  title  is  in  them  by  vir- 
tue of  the  premist-s;  that  at  the  time  of  said 
conveyance  by  Nat.  D.  Moore  to  John  Mon- 
roe said  Moore  was  unmarried,  and  that  said 
Helen  Moore  gave  nothing  for  either  or  any 
of  said  conveyances  nor  for  said  interest  in 
said  land;  and  that  she  took  the  same  with 
full  notice  and  knowledge  of  complainants' 
rights,  obtained  as  aforesaid,  by  deed  from 
said  Nat.  D.  Moore  to  said  John  Monroe." 
The  original  bill  charged  also  that  a  convey- 
ance was  made  by  McDonald  and  McKay  to 
Moore,  and  fraudulently  suppressed  before 
the  conveyance  to  said  Helen.  We  think 
the  allegations  of  the  bill,  as  amended,  are 
sufficient  to  support  the  decree.  McDonald 
and  McKay  held  in  trust  for  Moore;  that  is, 
upon  the  trust  created  by  their  obligation  to 
convey  to  him  on  request.  They  not  only 
did  not  deny  the  trust,  but  conveyed  on 
Moore's  request  to  his  nominee,  and  fraud  is 
charged  against  Moore  and  his  wife  in  pro- 
curing the  conveyance  to  the  latter.  The 
prayer  of  the  billVas  "that  the  said  Helen 
Moore  be  compelled  by  the  proper  decree  of 
this  court  to  execute  and  deliver  a  good  and 
sutlicient  warranty  deed  or  deeds  of  tlie  un- 
divided one-sixth  part  of  said  premises  to 
tliese  complainants,  in  the  proportions  to 
which  they  are  respectively  entitled,  as  sole 
heirs  of  said  Monroe;"  and  as  tliere  is  enough 
in   the  bill   as  amended   to  warrant   relief, 


CONSTRUCTIVE  TRUST. 


183 


and  as  the  defendants  could  not  have  been 
taken  by  surprise,  we  do  not  think  tlie  decree 
sliouid  be  reversed  on  the  ground  that  tlie 
allegata  and  the  probata  do  not  sufficiently 
agree  to  justify  it.  It  is  true,  there  is  no 
offer  to  pay  tlie  balance  of  the  purchase 
money,  but  the  case  shows  that  a  tender 


would  have  been  but  an  empty  show,  and  as 
tlie  court  had  it  in  its  power  to  require  pay- 
ment of  the  $240  note,  thus  completing  per- 
formance by  Monroe,  and  as  it  did  this  by 
its  decree,  the  allegatiim  would  have  been 
merely  formal  and  became  immaterial.  The 
decree  of  the  circuit  court  is  alBrmed. 


184 


ESTATES  IN   REAL  PROPERTY. 


RICE  V.  RICE. 

(65  N.  W.  103.) 

Supreme  Court  of  Michigan.      Dec.  3,  1895. 

Appeal  from  circuit  court,  Ionia  county,  in 
chancery;    Franli  D.  M.  Davis,  Judge. 

Bill  by  Julia  A.  Rice,  administratrix  of  the 
estate  of  Wallace  Rice,  against  Alonzo  Rice. 
There  was  a  decree  for  plaintiff,  and  defend- 
ant appeals.     Affirmed. 

Clute  &  Clute,  for  appellant  R.  A.  Haw- 
ley,  for  appellee. 

MONTGOMERY,  J.  The  bill  in  this  case 
was  filed  by  the  complainant  to  have  the  de- 
fendant declared  trustee  of  the  estate  of 
Wallace  Rico,  deceased,  and  to  require  the 
assignment  to  the  complainant,  as  adminis- 
tratrix, of  a  certain  real  estate  mortgage,  de- 
livered and  assigned  to  defendant  by  Wal- 
lace Rice  in  his  lifetime.  It  appears  that, 
in  the  spring  of  1892,  Wallace  Rice  was  a 
resident  of  Ionia  county,  and  was  worth 
about  $3,-500.  He  was  afflicted  with  a  pul- 
monary disease  and  desired  to  go  to  Colo- 
rado in  hopes  of  benefiting  his  health.  His 
property  at  this  time  consisted  of  the  mort- 
gage in  question,  which  amounted  to  $2,000, 
and  some  unsecured  notes  and  other  per- 
sonal property.  It  appears  that,  before  go- 
ing to  Colorado,  Wallace  executed  to  the  de- 
fendant an  assignment  of  the  mortgage,  ab- 
solute in  form,  and  the  sole  question  in  this 
case,  as  the  same  appears  to  us,  is  whether, 
by  tliis  conveyance,  it  is  intended  to  vest  a 
beneficial  interest  in  the  defendant,  or 
whether  the  transfer  was  made  for  greater 
convenience  in  dealing  with  the  security,  in 
the  interests  of  Wallace  and  his  estate;  and 
we  are  all  agreed  that  the  record  does  not 
leave  this  question  in  doubt,  if  we  confine 
ourselves  to  the  undisputed  testimony  and 
to  facts  testified  to  by  the  defendant.  It  is 
proper  to  say  that  we  are  convinced  that  the 
defendant  has  at  no  time  contemplated  a 
diversion  of  the  property  to  his  own  use,  but 
has  had  in  contemplation  the  preservation  of 
the  proceeds  of  the  mortgage  for  the  two 


minor  children  of  the  deceased,  but  we  are 
unable  to  find  any  trust  in  favor  of  the  chil- 
di'en.  Either  the  effect  of  the  assignment 
was  to  vest  in  the  defendant  an  indefeasible 
right,  or  a  trust  resulted  in  favor  of  Wallace 
in  his  lifetime,  and  a  right  remained  in  him 
which  vested  in  his  estate  on  his  decease. 
It  appears  by  the  testimony  that  Wallace 
first  prepared  a  power  of  attorney  to  collect 
the  mortgage,  and  gave  it  to  the  defendant. 
Defendant  then  said  to  him,  "If  you  die  or 
something  happens  to  you,  I  could  not  col- 
lect it."  Wallace  then  took  the  mortgage 
back,  leaving  the  power  of  attorney,  and  aft- 
erwards brought  the  assignment,  saying  to 
the  defendant,  "You  can  use  it  now."  It  also 
appears,  from  the  testimony  of  the  defend- 
ant, given  on  his  examination  bad  in  the 
probate  court,  that  no  consideration  passed 
to  Wallace  upon  this  transfer,  and  on  said 
examination  he  (the  defendant)  further  tes- 
tified: "I  don't  think  it  was  a  gift  to  me.  I 
suppose  it  was  placed  in  my  hands  for  the 
benefit  of  the  children.  Nothing  was  said 
about  it.  I  intended  to  use  the  mortgage  for 
the  benefit  of  the  children."  On  the  trial  of 
the  present  case  the  defendant  gave  the  fol- 
lowing testimony:  "Q.  In  case  he  (Wallace) 
had  lived,  and  you  had  collected  this  money, 
you  would  have  sent  it  to  him,  wouldn't 
you?  A.  If  he  had  lived  and  got  well,  I 
presume  I  should.  Q.  Don't  you  know  you 
would?  A.  Why,  yes."  This  testimony  and 
statement  of  defendant  show  that  there  was 
no  consideration  passing  to  Wallace;  that  de- 
fendant did  not  understand  that  the  transfer 
was  a  gift,  but  did  understand  that  the  bene- 
ficial interest  was  still  in  Wallace.  If  this 
be  so,  that  interest,  in  the  absence  of  an  ex- 
press trust  in  favor  of  the  children,  passed, 
on  Wallace's  death,  to  his  estate.  There  is 
no  evidence  of  any  declaration  of  trust  in 
favor  of  the  children.  The  circuit  judge 
granted  the  relief  prayed,  and  the  decree  is 
affirmed,  with  costs. 

HOOKER,  J.,  did  not  sit.     The  other  jus- 
tices concurred. 


CIJEDITOnS  OF  CESTUI  QUE  TRUST. 


185 


SPRING  V.  RANDALL  et  al. 

(G4  N.  W.  10G3.) 

Supreme  Court  of  Michigan.    Nov.  19,  lSO."i. 

Appeal  from  circuit  court,  Kent  county,  in 
■chancery;   Allen  C.  Acl.sit.  Judge. 

Petition  of  Henry  Spring  to  the  circuit 
•court.  From  an  order  overruling  demurrer 
to  the  petition,  Lewis  E.  Randall  and  Marie 
Van  Zant  Randall  appeal.     Attirmed. 

Frank  L.  Carpenter,  for  appellants.  Smi- 
ley, Smith  &  Stevens,  for  appellee. 

LONG,  J.  This  is  an  appeal  from  an  order 
■overruling  a  demurrer  to  a  petition  filed  in 
the  Kent  circuit  court  in  chancery.  It  is 
shown  by  the  petition  that  in  1880  the  will 
of  Rosalie  M.  Smith,  deceased,  was  admitted 
tx)  probate.  By  its  terms  the  greater  part  of 
the  large  estate  passed  to  Nelson  W.  North- 
rup,  as  trustee,  who  was  to  invest,  manage, 
and  control  the  same,  and  out  of  the  pro- 
<'eeds  and  income  to  pay  tJie  testatrix's 
niece,  Marie  Van  Zant,  an  annuity  of  if."JOO 
during  her  life,  and  also  all  the  income  of 
the  estate  after  complying  with  certain  mi- 
nor directions  in  the  will.  The  income  was 
to  be  paid  quarterly.  On  the  death  of  Marie 
Van  Zant,  the  entire  estate  was  to  go  to  her 
lawful  heirs,  or  to  whosoever  she  might  ap- 
point by  will.  Mr.  Northrup  acted  as  trus- 
tee from  1880  to  December,  1892,  when  the 
court  made  an  order  accepting  his  resigna- 
tion, which  was  made  in  consequence  of  dis- 
satisfaction between  him  and  ^liss  Van 
Zant,  and  appointed  Lewis  E.  Randall  as  his 
successor,  and  determined  that  the  amount 
of  money  due  from  Mr.  Northrup  to  his  suc- 
cessor was  ?21,820,  and  specified  also  the 
real  estate  to  be  conveyed  to  his  successor. 
Lewis  B.  Randall  accepted  the  appointment, 
and  filed  a  bond  with  the  register.  The 
moneys  were  paid  over,  and  the  estate  con- 
veyed to  him,  and  he  has  continued  to  net 
as  trustee  since  that  time.  The  petitioner, 
Henry  Spring,  is"  a  dry-goods  merchant  in 
It  rand  Rapids.  In  July,  1888,  he  began  fur- 
nishing Marie  Van  Zant  with  wearing  appar- 
el and  other  necessities,  on  credit,  and  con- 
tinued so  to  do  until  November,  1892;  and 
the  petition  states:  "All  said  wearing  ap- 
parel and  other  necessities  were  furnished 
the  said  Marie  J.  Van  Zant  at  a  time  when 
she  represented  herself  to  be  unable  to  pay 
cash  therefor  by  reason  of  the  litigation  then 
pending  between  herself  and  the  said  Nelson 
W.  Northrup  concerning  the  financial  affairs 
of  said  estate,  and  that  the  said  Marie  J. 
Van  Zant  promised  and  agreed  with  your 
petitioner  from  time  to  time  to  pay  for  said 
wearing  apparel  and  other  necessities  out  of 
the  income  of  said  estate  as  soon  as  she 
should  receive  the  same  and  be  able  so  to 
do."  At  divers  times  after  the  appointment 
of  the  new  trustee.  Mr.  Spring  applied  to 
Miss  Van  Zant  for  payment  of  the  goods  she 
had  obtained  from  him,  but  she  never  paid. 


In  February,  1894,  he  placed  the  claim  in 
judgment,  and  had  an  execution  issued,  and 
the  sheriff  made  diligent  efforts  to  collect, 
soliciting  payment  personally  from  the  debt- 
or, but  no  payment  was  made,  and  the  sher- 
iff subseipiently  made  return  that  he  was 
unable  to  find  any  property.  After  the  ap- 
pointment of  Lewis  E.  Randall  as  trustee, 
he  and  Marie  Van  Zant  were  married;  and 
it  is  alleged  that  tliey  are  combining  and 
confederating  to  prevent  the  collection  of 
Mr.  Spring's  judgment;  that  the  trustee 
holds  $21,0(J0  in  money  and  $10,000  in  real 
estate,  the  income  of  which  all  belongs  to 
his  wife,  the  debt6r,  Marie  Van  Zant  Ran- 
dall, and  the  income  of  which  is  sutficient 
to  enable  her  to  pay  the  debt;  but  tliat  she 
is  making  no  effort  to  do  so,  and  is  purpose- 
ly withholding  the  amount;  and  that  her 
husband,  the  trustee,  is  assisting  her  in  so 
doing.  It  is  alleged  that  there  is  no  rem- 
edy at  law  by  which  the  payment  can  be  en- 
forced, and  that  petitioner  is  entitled  to  pay- 
ment out  of  the  income  of  the  estate.  The 
prayer  of  the  petition  is:  (a)  That  the  trus- 
tee and  beneficiary  be  cited  to  appear,  etc.: 

(b)  that  the  ti'ustee  be  directed  to  pay  the 
judgment  at  such  time  or  times  and  in  such 
manner  as  by  this  court  shall  be  directed; 

(c)  that  the  amount  so  paid  by  the  trustee 
be  charged  against  the  beneficiary  in  the 
account  of  the  trustee;  and  (d)  for  general 
relief. 

It  is  contended  by  the  appellant  that  there 
is  no  equity  in  this  petition,  in  that,  by  the 
terms  of  the  will,  the  testatrix  intended  to 
create  a  fund  beyond  the  control  of  the  ben- 
eficiary, the  income  only  of  which  should  be 
used  for  her  personal  maintenance  and  sup- 
port during  life,  and  not  be  taken  in  pay- 
ment of  debts  contracted  by  her  or  through 
charges  against  her;  that  the  property  is 
bequeathed  directly  to  the  trustee,  giving 
him  title  and  possession;  and  that  such  trus- 
tee is  directed  to  invest,  manage,  and  con- 
trol it,  and  pay  the  income  to  the  beneficiary 
during  life,  but  he  is  not  authorized  to  pay 
it  to  her  grantors  nor  assigns.  It  is  also 
contended  that  the  remedy,  if  any,  could  be 
enforced  onlj^  by  original  bill. 

Section  5-j75,  How.  Ann.  St.,  provides: 
"When  a  trust  is  created  to  receive  the  rents 
and  profits  and  no  valid  direction  for  accumu- 
lation is  given,  the  suii^lus  of  such  rents  and 
profits  beyond  the  sum  that  may  be  necessary 
for  the  education  and  support  of  the  person  for 
whose  benefit  the  trust  is  created  shall  be  lia- 
ble in  equity  to  the  claims  of  creditors  of  such 
person  in  the  same  manner  as  other  personal 
property  which  cannot  be  reached  by  an  exe- 
cution at  law."  By  the  terms  of  the  will  by 
which  the  trust  in  this  case  was  created,  there 
is  a  direction  that  the  surplus  shall  be  paid  to 
the  beneficiary.  The  statute  above  quoted  was 
taken  verbatim  from  the  New  York  statute; 
and  in  Williams  v.  Thorn,  70  N.  Y,  270,  and 
in  ToUes  v.  Wood,  99  N.  Y.  616,  1  N.  E.  251, 
the  points  raised  by  the  appellant  here  were 


186 


ESTATES   IN   KEAL  PROPERTY, 


ruiiy  decided,  and  it  was  held  that,  where  a 
judgment  debtor  is  the  beuetieiary  of  a  trust 
by  which  the  trustee  is  required  to  receive  and 
pay  over  to  him  the  income  of  the  trust  es- 
tate, an  action  may  be  maintained  by  the 
judgment  creditor  after  the  return  of  an  execu- 
tion unsatisfied,  to  reach  the  surplus  income 
beyond  what  is  necessary  for  the  suitable  sup- 
port and  maintenance  of  the  beneficiary;  that 
the  right  of  the  creditor  to  maintain  such  an 
action  exists  as  well  where  the  trust  estate  is 
personal  as  where  it  is  real  property;  that  the 
remedy  of  the  creditor  is  not  confined  to  the 
surplus  which  has  accrued  and  accumulated  in 
the  hands  of  the  trustee,  but  that  the  court 
may  determine  what  may  be  a  reasonable  al- 
lowance for  the  beneficiary,  and  direct  the  ap- 
plication of  any  future  sun^lus  to  the  payment 
of  the  judgment  until  it  is  fully  paid;  that  the 
statute  exempting  from  the  operation  of  cred- 
itors' bills  trust  funds  when  the  trust  has  been 
created  by  or  the  trust  fund  has  proceeded 
fx-om  some  other  than  the  defendant  is  not  in 
conflict  with  the  statute  providing  that  the 
surplus  income  of  the  trust  estate  shall  be  lia- 
ble in  equity  to  the  claims  of  creditors;  that 
the  two  statutes,  v\iuch  are  similar  to  our  own 
sections  G614  and  5575,  are  to  be  construed 
together,  and  are  intended  to  exempt  the  prin- 
cipal fund  and  the  beneficial  interest  of  the 
beneficiai-j'  in  the  income  only  to  the  extent 
of  a  fair  support  out  of  the  trust  estate.  In 
Tolles  V.  Wood,  the  court  held,  further,  that 
the  creditor  of  such  a  beneficiary  acquires  a 
lien  upon  the  accrued  and  unexpended  suiiJlus 
income  arising  from  such  fund,  superior  to  the 
claims  of  general  creditors  or  assignees  of  the 
beneficiary,  by  the  commencement  of  an  action 
in  equity  to  reach  and  appropriate  it  to  the 
satisfaction  of  his  judgment.  In  Nichols  v. 
Levy,  5  Wall.  441,  Mr.  Justice  Swayne,  deliv- 
ering the  opinion  of  the  court,  said:  "It  is  a 
settled  rule  of  law  that  the  cestui  que  trust, 
whatever  it  may  be,  is  liable  for  the  payment 


of  its  debts.  It  cannot  be  so  fenced  about  by- 
inhibitions  and  restrictions  as  to  secure  to  it 
the  inconsistent  characteristics ,  of  right  and 
enjoyment  to  the  beneficiary,  and  immunity 
from  his  creditors.  A  condition  precedent  that 
the  provision  shall  not  vest  until  his  debts  are 
paid,  and  a  condition  subsequent  that  it  shall 
be  divested  and  forfeited  by  his  insolvency, 
with  a  limitation  over  to  any  other  persons, 
are  valid,  and  the  law  will  give  them  full  ef- 
fect. Beyond  this,  protection  from  the  claims 
of  creditors  is  not  allowed  to  go."  The  rule 
laid  down  in  Perry,  Tl-usts,  §  815,  and  in  Pom. 
Eq.  Jur.  §  989,  states  that  the  cestui  que  trust 
cannot  hold  and  enjoy  his  interest  entirely 
free  from  the  claims  of  creditors,  and  that,  in 
the  absence  of  special  circumstances,  the  cred- 
itor can  attach  the  beneficiary's  interest  in  the 
hands  of  the  trustee. 

This  application  is  made  simply  to  reach  the 
smaller  part  of  this  surplus  fund,  and  we  think 
it  sets  up  equitable  grounds  for  the  relief 
sought.  No  personal  decree  is  asked  against 
either  party,  nor  is  a  lien  sought  to  be  estab- 
lished upon  any  property.  The  relief  asked  is 
a  direction  to  the  trustee  to  pay  the  claim  out 
of  the  siu-plus  fund,  and  that  is  entirely  with- 
in the  province  of  the  court  having  jurisdiction 
of  the  trust  estate.  We  think  it  is  proper  to 
present  the  case  by  petition  rather  than  by 
original  bill.  In  Bank  v.  Byles,  67  Mich.  305, 
34  N.  W.  702,  in  disposing  of  a  similar  ques- 
tion, it  was  said:  "There  is  really  no  reason 
why  the  whole  grievance  may  not  as  well  be 
heard  upon  the  petition  as  upon  a  bill.  The 
facts  upon  which  relief  is  based  and  asked 
and  information  desired  can  as  well  be  stated 
anc^  presented  in  the  petition  as  in  a  bill.  The 
rights  of  all  the  parties  can  as  well  be  protected 
in  the  one  as  in  the  other."  We  think  the 
court  below  properly  oveiTuled  the  demun-er, 
and  the  proceeding  will  be  remanded  to  the 
court  below,  for  further  action  there.  The 
other  justices  concurred. 


REVERSIONS. 


187 


COOK  V.  HAMMOND. 

(Fed.   Gas.  No.  3,159,  4  Mason,  467.) 

Circuit  Court,  D.  Massachusetts.      Oct.  Term, 
1827. 

This  was  a  writ  of  eutiy.  The  parties 
agreed  upon  a  statement  of  facts  as  follows: 
"The  above  action  is  brought  by  the  plain- 
tiff [Horatio  G.  Cook]  to  recover  possession 
of  certain  undivided  portions  of  the  lands 
and  tenements  described  in  the  writs  against 
the  defendant  [Samuel  Hammond],  who 
claims  to  hold  possession  under  P]li  Leavitt 
and  Jane  his  wife  in  her  right,  who  dispute 
the  plaintiff's  title;  and  the  following  are  the 
facts  agreed  upon  between  the  parties:  In 
the  j'ear  1770  Koyal  Tyler  died  seised  in  fee 
of  the  demanded  premises,  leaving  three 
children,  viz.  John  S.  Tyler,  Royal  Tjder, 
and  Jane  Tyler.  The  eldest  son  relinquished 
his  right  to  a  double  share  according  to  the 
existing  law;  and  the  three  became  seised 
in  fee  as  tenants  in  common,  each  of  one 
undivided  third  part.  Jane  afterwards  inter- 
married with  David  Cook,  by  whom  she  had 
two  children,  viz.  the  plaintiff,  and  Maiy 
Tjder  Cook,  his  sister.  Jane  Cook  died  in 
1786,  so  seised  of  such  third  part,  leaving 
those  two  children  and  her  husband,  whereby 
he  became  seised  as  tenant  by  the  curtesy. 
Mary,  the  daughter,  died  during  his  life,  in 
1809.  David  Cook,  after  1786,  married  a 
second  wife,  by  whom  he  had  three  chil- 
dren, viz.  Charles,  Jane,  wife  of  the  said 
Leavitt,  and  Royal.  David  Cook  died  in 
1823,  he  or  his  assigns  continuing  until  that 
time  in  possession  under  his  title,  as  tenant 
by  the  curtesy.  It  is  considered  immaterial, 
for  the  purpose  of  the  present  inquiry, 
whether  Mary  Cook,  the  sister  of  the  plain- 
tiff, left  issue  capable  of  inheriting.  It  being 
agreed,  that  she  shall  be  considered  as  hav- 
ing died  without  any;  leaving  any  question, 
that  could  arise,  if  there  be  such,  to  be  set- 
tled between  them  and  the  plaintiff  or  de- 
fendant, as  there  may  be  occasion.  Upon 
this  statement  two  questions  are  presented 
to  the  court:  (1)  Whether  the  demanded 
premises,  of  which  Jane  Tjder  died  seised, 
belong  exclusively  to  the  plaintiff,  or  to  him 
and  the  defendant,  according  to  their  re- 
spective proportions,  as  tenants  in  common. 
(2)  And  if  to  them,  as  tenants  in  common, 
then,  whether  the  plaintiff  is  entitled  to  a 
double  share  of  his  mother's  estate;  or 
whether  he  is  only  entitled  to  one  moiety  by 
inheritance  from  her,  and  saving  any  further 
right  to  the  inheritance  of  his  sister  or 
father." 

C.  G.  Loring  for  plaintiff. 
C.  S.  Daveis,  for  defendant. 

STORY,  Circuit  Justice.  Upon  the  very 
elaborate  and  learned  arguments  at  the  bar, 
evei'y  matter  has  been  brought  before  the 
com't,  that  can  assist  in  forming  its  judg- 
ment. I  should  have  been  glad,  as  this  is  a 
point  of  local  law,  to  have  found  the  princi- 


pal question  adjudicated  in  our  own  state 
tribunals,  so  that  my  duty  might  have  been 
merely  to  follow  their  decision.  Unfortu- 
nately, no  such  case  is  known  to  exist,  and 
it  must  therefore  here  receive  an  original  de- 
termination. The  rules  of  the  common  law 
have  been  fully  stated  at  the  bar,  and  indeed 
admit,  upon  the  authorities,  of  no  serious 
controversy.  "S^'here  the  estiite  descended  is 
a  present  estate  in  fee,  no  person  can  inhei'it 
it,  who  camiot,  at  the  time  of  the  descent 
cast,  make  himself  heir  of  the  person  last 
in  the  actual  seisin  thereof;  that  is,  as  the 
old  law  states  it,  "seisina  facit  stipitem." 
But  of  estates  in  expectancy,  as  reversions 
and  remainders,  there  can  be  no  actual  seisin 
during  the  existence  of  the  particular  estate 
of  freehold;  and  consequently  there  c;innot 
be  anjr  mesne  actual  seisin,  which,  of  itself, 
shall  turn  the  descent,  so  as  to  make  any 
mesne  reversioner  or  remainder-man  a  new 
stock  of  descent,  whereby  his  heir,  who  is 
not  the  heir  of  the  person  last  actually  seised 
of  the  estate,  may  inherit.  The  rule,  there- 
fore, as  to  reversions  and  remainders,  ex- 
pectant upon  estates  in  freehold,  is,  that  un- 
less some  thing  is  done  to  intercept  the  de- 
scent, they  pass,  when  the  particular  estate 
falls  in,  to  the  person  who  can  then  make 
himself  heir  of  the  original  donor,  who  was 
seised  in  fee  and  created  the  particular  es- 
tate, or  if  it  be  an  estate  by  purchase,  the 
heir  of  him  who  was  the  first  purchaser  of 
such  reversion  or  remainder.  It  is  no  matter 
in  how  many  persons  the  reversion  or  re- 
mainder may,  in  the  intermediate  period, 
have  vested  by  descent;  they  do  not.  of 
course,  form  a  new  stock  of  inheritance. 
The  law  looks  only  to  the  heir  of  the  donor 
or  first  purchaser.  But  while  the  estate  is 
thus  in  expectancy,  the  mesne  heir,  in  whom 
the  reversion  or  remainder  vests,  may  do 
acts,  which  the  law  deems  equivalent  to  an 
actual  seisin,  and  which  will  change  the 
course  of  the  descent,  and  make  a  new  stock. 
Thus,  he  may  by  a  gi"ant,  or  devise  of  it,  or 
charge  upon  it,  appropriate  it  to  himself,  and 
change  the  course  of  the  descent.  In  like 
manner,  it  may  be  taken  in  execution  for 
the  debt  of  such  mesne  remainder-man  or  re- 
versioner during  his  life,  and  this,  in  the 
same  manner,  intercepts  the  descents.  But 
if  no  such  acts  be  done,  and  the  revei'siou  or 
remainder  continues  in  a  com'se  of  devolu- 
tion by  descent,  the  heir  of  the  first  donor 
or  pui-chaser  will  be  entitled  to  tlie  whole 
as  his  inheritance,  although  he  may  be  a 
stranger  to  all  the  mesne  reversioners  and 
remainder-men,  through  whom  it  has  de- 
volved. These  doctrines  are  fully  and  learn- 
edly explained  by  Mr.  Watkins  in  his  Essay 
on  Descents,  and  are  so  well  known,  that  it 
seems  unnecessary  to  give  to  them  any  illus- 
trative commentaiy.  Watk.  Desc.  137  (110), 
148  (110),  153  (120).  Now  the  operation  of 
this  doctrine  in  respect  to  estates  in  fee  in 
possession,  which  are  subject  to  dower  and 
tenancy   by  the  curtesy,  is  very  important. 


188 


ESTATES   IN   KEAL  PROPERTY. 


In  tlie  former  case,  though  the  heir  at  law  | 
may  obtain  an  actual  seisin  by  entry  into 
the  whole  estate,  yet,  by  the  assignment  of 
dower,  that  seisin,  as  to  the  third  part  as- 
signed as  dower,  is  defeated  ab  initio;  for 
the  dowress  is  in  of  the  seisin  of  her  hus- 
band, and  her  estate  is  but  a  continuance  of 
this  seisin.  The  same  principle  is  true  of 
tenant  by  the  cm-tesy.  It  Is  even  stronger, 
for  the  law  vests  the  estate  by  curtesy  in 
the  husband  without  any  assignment,  and 
even  without  any  entry,  if  the  wife  were 
already  in  possession,  his  estate  being  initi- 
ate immediately  on  issue  had,  and  consum- 
mate by  the  death  of  his  wife.  So  that  there 
is  no  chasm  between  the  death  of  the  wife 
and  his  possession,  as  there  is  in  case  of  the 
death  of  the  husband  and  the  assignment  of 
dower  to  the  wife,  in  which  there  can  be  a 
mesne  seisin.  Watk.  Desc.  (82)  104.  Nothing, 
therefore,  but  a  reversion  passes  in  such  case 
to  the  heir.  But  it  is  a  misnomer  to  call  it 
a  case  of  suspended  descent.  In  such  case 
of  ciu'tesy,  the  reversion  descends  and  vests 
absolutely  in  the  heir.  He  may  sell  it,  in- 
cumber it,  devise  it;  and  it  is  subject  to  ex- 
ecution as  part  of  his  property  dm-ing  his 
life.  The  descent  to  the  heir  is  not  suspend- 
ed, but  the  actual  seisin  of  the  fee  is  not 
in  him,  since  by  law  the  actual  seisin  is  in 
the  tenant  by  the  curtesy. 

Applying  these  principles  to  the  case  now^ 
in  judgment,  it  is  obvious,  that  when  .Jane 
Tyler,  the  wife  of  David  Cook,  died  in  178G, 
seised  of  the  premises,  her  husl)and  became 
tenant  thereof  by  the  ciu'tesy,  and  conse- 
quently the  reversion  thereof  alone  descend- 
ed to  her  children,  viz.  to  Horatio  G.  Cook 
(the  plaintiff)  and  Mary  T.  Cook.  By  the  act 
of  descents  of  1783,  c.  36  [supra],  the  eldest 
son  was  entitled  to  two  shares,  and  this 
right,  if  at  all,  took  effect  at  the  time  of  the 
descent  cast;  and  it  is  just  as  applicable  to 
the  case  of  a  reversion  or  remainder  as  to 
a  present  estate  in  fee.  Nothing  has  since 
taken  place  to  devest  the  title  of  the  plaintiff 
by  descent  from  his  mother,  and  as  the  es- 
tate has  fallen  into  possession  by  the  death 
of  his  father,  his  reversion  has  become  a 
present  estate  to  two  thirds  of  the  premises 
in  conti'oversy.  The  great  question  tm-ns  up- 
on the  third  of  the  reversion  belonging  to 
Maiy  T.  Cook.  She  die*d  in  1809,  and  if 
without  issue,  and  it  had  been  a  present  es- 
tate in  fee,  her  father  would  have  inherited 
it  as  her  heir.  It  was  but  a  revei'sion,  and 
if  the  rule  of  the  common  law  be  in  force 
here,  the  plaintiff,  being  at  the  time  of  the 
death  of  the  tenant  by  the  ciu'tesy  the  sole 
heir  of  his  mother,  is  entitled  to  take  the 
whole  estate.  Have  oiu"  laws  abrogated  the 
rule  of  the  common  law?  By  the  colonial 
acts  of  1641  and  1649  it  was  ordered,  that 
"when  the  husband  or  parents  die  intestate, 
the  county  court  &c.  shall  have  power  &c.  to 
divide  and  assign  to  the  children,  or  other 
heirs,  their  several  parts  and  portions  out 
of  the  said  estate;    provided  the  eldest  son 


shall  have  a  double  portion;  and  where 
there  are  no  sons,  the  daughters  shall  inherit 
as  copartners,  unless  the  com-t,  upon  just 
cause  alleged,  shall  otherwise  determine." 
There  is  nothing  in  this  language,  which 
points  to  any  particular  kind  of  estates,  and 
the  language  is  suittciently  broad  to  cover 
all  kinds.  By  the  provincial  act  of  1692  (4 
W.  &  M.  c.  8)  it  was  enacted,  "that  every 
person  lawfully  seised  of  any  lands,  tene- 
ments, or  hereditaments  within  this  province, 
in  his  own  proper  right  in  fee  simple,  shall 
have  power  to  give,  dispose,  and  devise  the 
same,"  &c.  &c.;  and  if  not  so  disposed  of, 
then  "the  same  shall  be  subject  to  a  division 
with  his  personal  estate,  and  be  alike  dis- 
ti-ibuted  according  to  the  rules  hereinafter 
expressed  for  intestate  estates."  Here,  again, 
there  is  no  language  discriminating  between 
the  various  kinds  of  estates,  whether  present 
or  in  expectancy,  unless  some  stress  can  be 
laid  on  the  words  "lawfully  seised  of  any 
lands,"  &c.  the  force  and  effect  of  which  will 
come  under  consideration  in  construing  the 
act  of  descents,  under  which  the  present 
question  arises.  The  act  of  1783  (chapter  oij) 
enacts,  that  "when  any  person  shall  die 
seised  of  any  lands,  tenements,  or  heredita- 
ments, not  by  him  devised,  the  same  shall 
descend  in  €qual  shares  to  and  among  his 
children,  &c.,  except  the  eldest  son,"  &c.  &c. 
Another  clause  declares,  that  "the  real  estate 
shall  stand  chargeable  with  all  the  debts  of 
the  deceased  over  and  above  what  the  per- 
sonal estate  shall  be  sufficient  to  pay,"  &c. 
And  throughout  the  act,  there  is  a  studious 
silence  as  to  any  differences  in  the  course 
of  descent  of  any  estates  capable  of  descend- 
ing. Then  came  the  act  of  descents  of  1805 
(chapter  90),  which  was  drawn  by  Chief  Jus- 
tice Parsons,  and  after  a  full  explanation  of 
his  views,  with  his  permission  perused  by 
me,  then  being  a  member  of  the  legislature, 
and  with  what  little  aid  and  co-operation  1 
could  give  it,  passed  into  a  law.  That  act 
provides,  that  "when  any  person  shall  die 
seised  of  any  lands,  tenements,  or  heredita- 
ments, or  of  any  right  thereto,  or  entitled 
to  any  interest  thei'ein,  in  fee  simple,  or  for 
the  life  of  another,  not  having  lawfully  de- 
vised the  same,  the  same  shall  descend  in 
equal  shares  to  his  children,  &c.  &c. ;  and 
when  the  intestate  shall  leave  no  issue,  the 
same  shall  descend  to  his  father,"  &c.  &c. 
Mary  T.  Cook  died  in  1809,  and  consequently 
this  act  regulates  the  descent  of  her  estate. 

The  present  case  is  obviously  within  the 
words  of  the  act.  No  reasonable  doubt  can 
be  entertained,  that  a  reversion  is  a  "right" 
or  "interest"  in  lands.  In  truth,  it  is  in- 
cluded under  the  denomination  even  of 
"land,"  and  a  grant  of  land  will  convey  a 
reversion.  Com.  Dig.  "Estates,"  B,  12.  A 
fortiori,  it  is  included  under  the  description 
of  "tenement"  and  "hereditament,"  for  these 
are  words  of  more  extensive  import,  nomina 
generalissima.  Com.  Dig.  "Grant,"  E; 
Shep.  Touch.  88;    1  Inst.  6a.     The  language 


REVERSIONS. 


189 


of  the  act  is,  "when  any  person  shall  die 
seised."  But  it  is  not  a  just  construction  of 
the  act,  to  interpret  this  as  iuteudin;^  an 
actual  seisin.  Lord  Coke  says  (1  Inst.  15  la), 
"seisin  is  common,  as  well  to  the  English  as 
French,  and  signifies,  in  tht?  common  law, 
possession."  Com.  Dig.  "Seisin,"  A,  1.  It 
may  be  either  a  seisin  in  law\  or  a  seisin  in 
fact.  Now,  without  adverting  to  what  con- 
stituted, in  the  ancient  law,  a  seisin  in  law, 
as  contradistinguished  from  a  seisin  in  d.ed, 
it  is  suflicient  to  s;iy.  that  for  centuries  the 
language  of  the  law  has  been,  that  a  rever- 
sioner is  "seised"  of  the  reversion,  although 
dependent  upon  an  estate  for  life.  Thus,  in 
I'iowden,  191,  it  was  held  by  the  court,  that, 
where  a  reversion  is  dependent  upon  an 
estate  for  life,  the  reversioner,  in  pleading, 
may  state,  that  he  is  seised  of  th:-  r.v<.rsioi. 
Watk.  Desc.  c.  1,  §§  1  (27),  30-44;  2  Bl.  Comm. 
127.  By  this  no  more  is  meant,  than  that  he 
has  a  fixed  vested  right  of  future  enjoyment  in 
it.  If  a  sense,  at  least  as  large  as  this,  wer*' 
not  given  to  the  term  "seised,"  it  would  fo', 
low,  that  the  descent  of  reversions  and  re- 
mainders vested  by  purchase  in  the  ancestor. 
and  even  of  reversions  vested  in  the  original 
donor  of  the  particular  estate,  would  be 
wholly  unprovided  for,  both  by  the  provin- 
cial acts  of  descents  of  1692,  and  the  state 
act  of  1783.  Cases  of  this  sort  must  have 
been  innumerable,  and  yet  no  doubt  ever 
was  entertained,  that  the  descent  of  such 
remainders  and  reversions  was  provided  for 
by  these  acts.  My  opinion  is,  however,  that 
the  word  "seised,"  used  in  all  these  acts,  has 
a  broader  signification,  and  such  as  belongs 
to  it  in  common  parlance.  It  is  equivalent 
to  "owning;"  and  "seisin"  is  equivalent  to 
"ownership."  My  reason  is,  that  otherwise 
none  of  these  acts  would  regulate  the  de- 
scents of  estates,  whereof  the  ancestor,  at 
the  time  of  his  death,  was  disseised;  and 
yet,  from  the  first  existence  of  these  acts, 
up  to  the  present  day,  it  has  always  l)eeu 
understood,  that  the  descent  of  estates  from 
the  dissoisoe,  was  to  the  same  heirs  as  would 
inherit,  if  he  died  in  the  actual  seisin.  The 
language 'of  the  provincial  act  of  1092  is, 
"any  person  lawfully  seised;"  but  that  of 
the  acts  of  1783  and  1805  is,  any  p-rsju  who 
"shall  die  seised."  Upon  a  descent,  there- 
fore, cast  from  an  ancestor,  who  was  dis- 
seised in  his  life-time,  and  died  dis-eised,  no 
title  would  pass  to  his  heirs  under  these  acts 
(but  pass  to  the  heir  at  common  law),  if 
we  did  not  interpret  the  word  "seised"  as 
e'quivalent  to  "owning"  or  "entitled  to;"  and 
this,  as  far  as  my  knowledge  extends,  has 
been  the  uniform  interpretation.  If,  how- 
ever, any  doubt  whatsoever  could  remain  on 
this  point,  it  is  put  completely  at  rest  by  the 
supplementary  clause  in  the  act  of  1SU5;  "or 
of  any  right  thereto,  or  entitled  to  any  in- 
terest therein."  And  as  one  object  of  that 
act  was  to  clear  av.ay  latent  ambiguities, 
and  to  affirm  the  settled  construction  upon 
the  former  acts,  these  words  seem  appropri- 


ate for  the  very  purpose  under  consideration. 
I  confess  I  should  not  have  entertained  any 
doubt  as  to  the  true  construction,  without 
them.  There  are  other  parts  of  these  acts, 
which  satisfy  my  mind,  that  the  legislature 
intended,  by  them,  to  provide  effectually  for 
the  descent  of  all  the  real  estate  of  the  in- 
testate. The  phrase,  "real  estate,"  occurs 
frequently  in  the  acts,  as  of  the  same  im- 
port with  the  words,  "lands,  tenements,  and 
hereditaments;"  and  the  provision,  making 
the  "real  estate"  of  the  intestate  liable  to  his 
debts,  was  evidently  meant  to  be  co-exten- 
sive with  the  property,  which  would  pass  by 
descent.  If  the  legislature,  by  these  acts, 
meant  to  provide  a  system  of  descents  for 
all  the  real  estate,  which  is  vested  in  the 
intestate  at  the  time  of  his  death,  and  refer  to 
him  alone  as  the  stock  of  inheritance  as  to 
such  real  estate,  upon  what  ground  can  re- 
sort be  had  to  the  common  law  for  a  rule  of 
descent  in  the  present  case.  The  legislature 
has  nowhere  named  reversions  or  remain- 
ders, as  entitled  to  a  distinct  course  of  de- 
scent. It  has  nowhere  stated,  that  the  heir 
must  make  himself  heir,  when  the  estate 
falls  into  possession  of  the  original  reversion- 
er, or  of  the  purchaser  of  such  remainder. 
It  has  been  perfectly  silent  on  this  subject; 
and  has  uniformly  looked  to  the  last  in- 
testate, as  the  stock  of  descent  of  the  real 
estate  vested  in  him;  and  in  one  or  two  ex- 
cepted cases  only  (as  of  a  child  dying  un- 
der age,  «S:c.)  has  made  a  special  provision, 
interfering  with  the  general  policy  of  the 
acts.  These  very  exceptions  are  strong  to 
show,  that  no  others  were  intended.  If  the 
argument  at  the  bar  can  be  maintained, 
then  this  is  a  case  wholly  unprovided  for 
by  any  statute,  and  the  descent  is  to  be  reg- 
ulated by  the  canons  of  the  common  law. 
But  if  reversions  and  remainders  are  out 
of  the  statute,  so  far  as  respects  the  stock 
of  inheritance,  what  ground  is  there  to  stop 
here,  and  not  apply  the  same  rule  to  the 
heirship?  If  the  statute  meant  to  leave  the 
rule  of  the  common  law  in  force,  as  to  re- 
versions and  remainders,  then  the  heir  at 
common  law,  that  is,  in  case  of  several  chil- 
dren, the  eldest  son,  is  entitled  to  take  the 
whole.  Upon  what  principle  can  we  apply 
our  canons  of  descent  to  reversions  and  re- 
mainders to  ascertain  who  are  the  heirs, 
and,  at  the  same  time,  refuse  the  like  applica- 
tion as  to  wiio  is  the  ancestor,  or  stock  of 
inheritance?  If  our  statutes  do  not  con- 
template cases  of  reversions  and  remain- 
ders, then  such  cases  are  to  be  governed 
wholly  and  exclusively  by  the  common  law. 
Such  a  doctrine  has  not,  as  I  recollect,  been 
asserted. 

The  present  question  must  have  often  oc- 
cm-red,  in  many  cases  of  dower,  and  in  still 
more  numerous  cases  of  tenancy  by  the  cur- 
tesy. Yet  hitherto  there  has  been  a  total  si- 
lence among  the  profession  on  the  suliject. 
There  has  not  been  any  case  within  the  mem- 
orj'  or  tiadition  of  any  man,  in  which  such  a 


190 


ESTATES   IN   REAL  PROPERTY. 


right  has  been  asserted  or  acquiesced  in,  as 
the  plaintiff  now  claims.     Judge  Trowbridge, 
in  his  reading  on  the  statute  of  distributions 
(Precedents,    Declar.,    Ed.    1802,    p.    290)    of 
1692,  makes  no  allusion  to  any  such  doctrine; 
and    yet    if    it    had    been    stirred,    it    could 
scarcely  have  escaped  his  learned  mind,  and 
must  have  constituted  a  very  important  part 
of  his  reading.     1  have  a  note  of  a  very  mem- 
orable case  (Ames  v.  Gay),  in  which  the  ques- 
tion must  have  arisen,  and  must  have  been 
decided,  if  there  had  been  any  such  doctrine 
then  afloat     My  note  sUites,  that  the  case 
was  an  ejectment  decided  on  a  special  ver- 
dict in  1749,  and  that  the  facts  were  as  fol- 
lows:    One  Fisher  was  seised  of  the  estate 
in  question,  and  devised  the  same  to  his  wife, 
during-  her  widowhood,  remainder  in  fee  to 
his  daughter  Mary,  who  was  the  wife  of  the 
demandant.     The   testator   died,   and   after- 
wards,  dm-ing  the   life  of  Fisher's   widow, 
Mary,  the  devisee,  died,  leaving  an  only  child, 
Fisher  Ames,  who  afterwards  died  without 
issue,  and  intestate.     Afterwards  the  widow 
of  Fisher  died,  and  thereupon  the  demand- 
ant brought  the  suit,  as  heir  of  his  son,  Fisher 
Ames.     The  defendant  (Gay)  claimed  the  es- 
tate as  husband  of  the  niece  or  Mary,  the 
wife   of   the   demandant.     The   court,    after 
argument,  gave  judgment  for  the  demandant 
I   have  understood,  that  this  was   the  flrst 
cause  in  which  the  point  was  decided,  that 
the  father  could  inherit  from  the  son,  under 
the  provincial  act  of  1G92.     But  it  presents 
the  identical  question  now  before  the  com-t, 
and  the  father  could  not  have  recovered,  if 
the  plaintiff's  argument  is  now  well  found- 
ed.     The    case   of    Williams   v.    Amory,    14 
Mass.  20,  seems  to  have  proceeded  upon  the 
ground,  that  a  remainder-man,  who  died  be- 
fore the  expiration  of  the  tenancy  for  life, 
was  a  proper  stock  of  descent.     In  that  case 
the  intestate  took  by  piu'chase,  and  therefore 
was  at  common  law  a  proper  stock  of  inher- 
itance,  and  as  he  left  only  one  child,   the 
descent  was  the  same  as  at  the  common  law. 
The  com-t,   however,   took  no  notice   of  the 
case  in  tliis  particular  view.     But  the  court 
there  decided  that  remainders  and  reversions 
were,  under  our  laws,  liable  to  be  taken  in 
execution   for  the  debts   of  the  reversioner 
and    remainder-man,    and    comprehended    as 
"real  estate"  of  the  debtor  under  om*  statute 
of  executions  of  17S3,  c.  57.     The  cause  of 
Whitney  v.  Whitney,  14  Mass.  88,  is  more  in 
point.     There  the  coui't  held,  that  a  rever- 
sion in  the  hands  of  a  mesne  reversioner  was, 
on  his  death,  to  be  considered  as  assets  in 
the  hands  of  his  administrator  for  the  pay- 
ment of  his  debts,  notwithstanding  the  ten- 
ancy for  life  did  not  expire  until  after  his 
death.     The  reasoning  of  the  com-t  proceeds 
upon  the  admission  of  the  doctrine  of  the 
common  law;   and  that  it  had  been  changed 


by  oiu*  statutes.  If  the  reversion,  notwith- 
standing the  death  of  the  party,  before  the 
life  estate  falls  in,  be  assets,  because  it  con- 
stitutes a  part  of  the  "real  estate"  of  the 
mesne  reversioner,  it  seems  to  me,  that  for 
the  same  reason,  it  must  be  liable  to  distri- 
bution among  his  heirs. 

Upon  the  whole,  my  opinion  on  this  ques- 
tion is,  that  the  common  law  rule,  as  to  de- 
scents of  reversions  and  remainders,  has 
been  altered  by  our  statutes,  and  is  not  in 
force  here;  and  that,  by  om-  statutes,  rever- 
sions and  remainders,  of  which  the  intestate 
is  the  owner  at  the  time  of  his  death,  are 
to  be  disti-ibuted  among  his  heirs  in  the  same 
manner  as  estates  in  possession.  In  Con- 
necticut the  same  question  has  arisen  under 
the  statute  of  descents  of  that  state,  which 
contains  provisions,  in  substance,  like  ours; 
and  after  very  elaborate  arguments,  the  court 
came  to  the  same  results,  to  which  my  own 
judgment  has  been  led. 

There  is  a  point  which  has  been  suggested 
at  the  argument,  upon  which  it  may  be  well 
to  dwell  for  a  moment,  as  it  fortifies  the  con- 
clusion already  expressed  by  the  court,  and 
leads  adverse  to  the  right  of  the  demandant 
to  recover  the  third  of  the  reversion,  which 
devolved  on  his  sister  Mary.  It  is  this,  that 
as  upon  her  death,  her  right  in  the  reversion, 
by  our  statutes,  descended  to  her  father,  and 
vested  in  him  as  a  mesne  reversioner,  and 
as  he  was  then  tenant  for  life,  by  the  curtesy, 
of  the  whole  premises,  he  became  by  opera- 
tion of  law,  to  this  third  part,  seised  in  fee 
by  the  union  of  both  estates.  In  other 
woi-ds,  his  estate  for  life,  as  to  this  third 
part,  became  merged  in  the  reversion  in  fee, 
which  devolved  upon  him.  Lord  Coke  puts 
(1  Inst.  182b)  several  analogous  cases.  "If 
(says  he)  a  man  maketh  a  lease  to  two  for 
their  lives,  and  after  granteth  the  reversion 
to  one  of  them,  the  jointiu-e  is  severed,  and 
the  reversion  is  executed  for  the  one  moiety, 
and  for  the  other  moiety  there  is  tenant  for 
life,  the  reversion  in  the  grantee."  So,  "if 
lessee  for  life  granteth  his  estate  to  him  in 
the  reversion,  and  to  a  sti-anger,  the  jointm'c 
is  severed,  and  the  reversion  executed  for 
the  one  moiety  by  the  act  of  law."  If  I  may 
be  allowed  to  state  a  fact  within  my  personal 
knowledge,  I  would  add,  that  at  an  early  pe- 
riod of  my  professional  life,  I  put  this  very 
inquiry  to  Mr.  Chief  Justice  Dana,  in  order 
to  ascertain  if  the  common  law  rule  had  evtr 
been  recognised  here.  His  answer  was, 
that  he  knew  no  distinction  admitted  in  de- 
scents here,  between  estates  in  possession 
and  in  reversion.  I  refer  to  this  merely  to 
show  that  his  extensive  learning  and  practice 
had  not  led  him  to  notice  the  existence  of 
any  distinction  in  tliis  state. 

Judgment  for  plaintiff,  two  thirds  of  the 
premises. 


POSSIBILITY  OF  IlEVERTER. 


191 


SLEGEL  V.  HEKBINE  et  aL 

Appeal  of  LAUEK. 

(23  Atl.  996,  148  Pa.  St.  236.) 

Supreme  Court  of  Pennsylvania.     March  28, 
1892. 

Appeal  from  court  of  common  pleas, 
Berks  county;    G.  A.  Endlicli,  Judge. 

■Suit  by  Sue  J.  Slegel,  executrix  of  Joel 
Slegel,  against  Samuel  G.  Herbiue  and  oth- 
ers, county  commissioners  of  Berks  county, 
with  notice  to  Rebecca  Lauer,  executrix  of 
William  Rhoads,  Sr.,  and  John  W.  Rhoads, 
to  obtain  the  cancellation  of  a  deed.  Fi'om 
41  decree  for  plaintiff,  Rebecca  Lauor  ap- 
peals.    Affirmed. 

The  following  is  the  opinion  of  Judge  G. 
A.  Endlich  in  the  court  below: 

"Plaintiff  is  in  possession  of  a  strip  of 
land  8  feet  wide  and  2oU  feet  deep,  in  the 
city  of  Reading,  adjoining  on  the  south 
property  of  the  estate  of  William  Rhoads, 
Sr.,  deceased,  which  formerly  belonged  to 
the  county  of  Berks,  and  was  the  site  of  the 
old  county  jail.  On  December  1,  1772, 
plaintiff's  predecessor  in  title,  George 
Fleisher,  with  Margaret,  his  wife,  in  con- 
sideration of  the  payment  to  them  of  seven- 
teen pounds,  lawful  money  of  Pennsylvania, 
by  indenture  duly  executed  and  acknowl- 
edged, and  recorded  in  the  recorder's  office 
in  Deed-Book  B,  vol.  2,  p.  71,  'granted,  bar- 
gained, sold,  released,  and  confirmed  unto 
Henry  Reuthmeyer,  David  Bright,  and  Abra- 
ham Lincolu,  commissioners  of  Berks  coun- 
ty, and  to  their  and  each  and  every  of  their 
_  successors  in  the  said  office  of  commission- 
ers, a  certain  piece  or  part  of  the  said 
above  mentioned  and  described  lot,  situate 
on  the  south  side  thereof,  adjoining  the 
prison  lot  and  wall,  containing  in  front  on 
Callowhill  street  aforesaid,  north  and  south, 
■eight  feet,  and  in  length  or  depth,  east  and 
west,  two  hundred  and  thirtj'  feet,  to  a 
twenty  feet  alley;  together  with  the  appur- 
tenances. (Excepting  and  hereby  reserving 
unto  the  said  George  Fleisher,  his  heirs  and 
assigns,  forever  hereafter,  the  free  liberty 
and  use  of  the  said  hereby  granted  prem- 
ises, and  every  part  thereof,  for  an  open 
yard,  garden,  or  grass  lot,  with  the  rents, 
issues,  and  profits  of  the  same,  and  every 
part  thereof:  provided,  alwas^s,  that  the 
said  George  Fleisher,  his  heirs,  executors, 
administrators,  or  assigns,  keep  no  other 
gates  or  fences  about  the  same  except  pale 
gates  and  fences  two  inches  and  a  half 
apart  and  not  to  exceed  four  feet  and  a  half 
in  height.)  To  have  and  to  hold  the  said 
piece  or  portion  of  ground  hereby  granted 
or  mentioned  or  intended  so  to  be,  with  the 
appurtenances  (except  before  excepted),  un- 
to the  said  Henry  Reuthmeyer,  David 
Bright,  and  Abraham  Lincoln,  commission- 
ers as  aforesaid,  and  their  successors  in  the 
said  office;  to  and  for  the  use,  intent,  and 
purposes  following,  that  is  to  say:    To  be 


and  remain  forever  hereafter  unbuilt  on, 
in  order  to  prevent  any  prisoner  or  prison- 
ers making  their  escape  over  the  said  prison 
wall  by  reason  or  means  of  any  building  to 
be  erected  contiguous  to  the  same  wall.' 

"By  section  14  of  the  act  of  April  8,  1848 
(P.  L.  pp.  399,  406,  407),  the  commissioners 
of  Berks  county  were  'authorized,  as  soon 
after  the  removal  of  the  prisoners  then  in 
jail  from  the  said  old  jail  to  the  (newly 
erected)  Berks  county  prison,  as  to  them 
shall  appear  expedient,  to  sell  the  old  jail 
property  in  the  city  of  Reading,  consisting 
of  the  old  jail  buildings  and  the  appurte- 
nances, and  a  lot  of  ground,  being  on  the 
corner  of  North  Fifth  and  Washington 
streets,  in  the  said  city  of  Reading,  and  hav- 
ing sixty  feet  on  said  North  Fifth  street, 
and  230  feet  on  Washington  street,  and  to 
assure  and  convey  to  the  purchaser  or  pur- 
chasers the  said  property,  by  good  and  suffi- 
cient deed  or  deeds.'  Under  this  statute 
the  commissioners  sold  and  conveyed  the 
old  jail  property,  with  the  appurtenances, 
to  William  Rhoads,  Sr.,  the  deed  being  dated 
April  2,  1849,  and  recorded  in  Deed-Book  A, 
vol.  56,  p.  232.  About  that  time  the  prop- 
erty ceased  to  be  used  for  the  purpose  of  a 
county  jail.  The  new  prison  is  removed 
more  than  a  mile  from  the  old  location. 

"The  object  of  the  bill  filed  in  this  case  is 
to  obtain  the  cancellation  of  the  instrument 
of  December  1,  1772,  the  plaintiff  alleging 
that  she  is  anxious  to  sell  the  property  of 
the  testator,  'but  is  unable  to  do  so  at  a 
proper  and  adequate  price,  for  the  reason 
that  the  said  Rebecca  Lauer  and  John  W. 
Rhoads,  defendants  In  this  suit,  insist  upon 
and  have  made  public  that  they  are  entitled 
to  the  rights  and  privileges  of  the  county 
commissioners  contained  in  said  agreement 
of  December  1,  1772,  and  thereby  have  pre- 
vented and  still  prevent  a  sale  of  said  prop- 
erty for  a  proper  price,  to  the  great  incon- 
venience and  damage  of  your  orator.'  The 
bill  names  as  defendants  the  present  com- 
missioners of  Berks  county  and  Rebecca 
Lauer,  executrix  of  William  Rhoads,  Sr..  de- 
ceased, and  John  W.  Rhoads;  the  will  of 
William  Rhoads,  Sr.,  deceased,  giving  the 
property  to  Rebecca  Lauer  and  John  W. 
Rhoads  for  life,  with  remainder  to  their 
children.  The  commissioners  have  de- 
murred to  the  bill,  while  the  remaining  de- 
fendants have  answered.  By  agreement  of 
counsel  representing  the  several  parties,  the 
demurrer  and  the  bill  and  answer  were  set 
down  for  hearing  and  argued  at  the  same 
time. 

"As  preliminary  to  the  decision  upon 
either  submission,  we  shall  have  to  declare 
our  interpretation  of  the  instrument  of  1st 
December,  1772.  It  is,  in  form,  a  convey- 
ance to  the  commissioners  and  their  suc- 
cessors in  office,  i.  e.,  as  these  boards  were 
then  regarded  as  corpo':"ations  (Vankirk  v. 
Clark,  16  Serg.  &  R.  28G.  290).  a  grant  of  the 
fee   (2   Bl.    Comm.   p.    109).     Moreover,    the 


192 


ESTATES   IN   REAL  PROPERTY. 


grant  is  of  the  land  itself,  subject  to  a  con- 
ditional  reservation   (see  Adams  v.   Valen- 
tine, 33  Fed.  1)  of  the  use  of  the  surface. 
There  is  therefore  no  room  for  the  theory 
that  the  effect  of  the  deed  is  to  create  an 
easement  in  favor  of  the  grantees.    An  ease- 
ment is  a   liberty,  privilege,    or  advantage 
which  one  may  have  in  the  lands  of  anoth- 
er without  profit.     Big  Mount.  Improvement 
Co.'s  Appeal,  54  Pa,.  St.  361,  3G9.     It  may  be 
merely  negative  (4  Sharsw.  &  B.  Lead.  Cas. 
Real  Prop.  p.  125),  and  may  be  created  by  a 
covenant  or  agreement  not  to  use  land  in  a 
certain  way  (Id.  p.  131) ;  but  it  cannot  be  an 
estate  or  interest  in  the  land   itself,   or  a 
right  to  any  part  of  it  (Id.  p.  121;    Huff  v. 
McCauley,    53    Pa.    St.    206,    209;    Grubb    v. 
Grubb,  74  Pa.  St.  25,  33).     If  any  easement 
is  created  by  this  instrument,   it  is  by  the 
reservation,  and  in  favor  of  the  grantor.    It 
seems  clear  that,  had  the  grantor  or  his  as- 
signs undertaken  to  use  the  land  in  a  man- 
ner   different   from    that   permitted   by    the 
reservation,   coupled   with   the  proviso,    the 
grantees  or  their  successors  could,  by  eject- 
ment,   have    ousted    them    altogether.     See 
Bear  v.  Whisler,  7  Watts,   144.     But  eject- 
ment does  not  lie  to  enforce  an  easement  or 
privilege.     Black's    Lessee    v.    Hepburne,    2 
Yeates,  331;    Canal  Co.  v.  Young,  1  Whart. 
410,   424.     In   construing   a   deed,    however, 
we  are  to  look  at  it  as  a  whole,  so  that  no 
part  of  it  may  be  rejected.    Wager  v.  Wa- 
ger, 1  Serg.  &  R.  374,  375.     'The  premises  of 
a  deed  are  often  expressed  in  general  terms, 
admitting    of    various    explanations    in    the 
habendum,'  which  'may  lessen,  enlarge,  ex- 
plain, or  qualify  the  premises,  but  not  total- 
ly contradict  them'  (Id.);    and  for  that  pur- 
pose the  court  in  that  case  interrogates  the 
habendum     and     the     declaration    of    uses. 
These,    in   the  present    instance,    could    not 
have  the  effect  of  reducing  the  grant  of  a 
fee  in  the  premises  to  anything  less  than  a 
fee,  but  they  can  explain  the  nature  of  that 
fee  to  be  either  an  absolute  or  a  base  or 
qualified    one.     It    must    not    be    forgotten 
that  such  a  fee  is  nevertheless  a  fee-simple, 
"^because  it  may  last  forever  in  a  man  and 
his  heirs,  the  duration  depending  upon  the 
concurrence     of     collateral     circumstances 
which  qualify  and  debase  the  purity  of  the 
grant.     2  Bl.  Comm.  p.  109.     The  qualifica- 
tion must  be  found  in  the  instrument  Itself. 
Canal  Co.  v.  Young,  1  Whart.  410;   Kerlin  v. 
Campbell,  15  Pa.  St.  500.     But  no  special  or 
technical  words  are  required  to  establish  it. 
2  Sharsw.  &  B.  Lead.  Cas.  Real  Prop.  p.  23. 
'The  construction  of  a  deed,,  as  to  its  opera- 
tion and  effect,'  says  Kent,  speaking  of  this 
very  matter,  'will,  after  all,  depend  less  up- 
on artificial  rules  than  upon  the  application 
of  good  sense  and  sound  equity  to  the  ob- 
ject and  spirit  of  the  contract  in  the  given 
case.'     4     Kent,    Comm.    p.    132.     What    is 
needed  is  that  the  deed  on  its  face  contain 
a  reservation  or  declare  a  specific  purpose 
for  which  the  land  was  conveyed,  and  from 


which  the  reservation  may  be  implied.  Ca- 
ton,  J.,  in  Adams  v.  Logan  Co.,  11  111.  336. 
Of  course,  the  mere  expression  of  a  purpose 
will  not  of  and  by  itself  debase  a  fee.  Thus 
a  grant  in  fee-simple  to  county  commission- 
ers of  land  'for  the  use  of  the  inhabitants  of 
Delaware  county,  to  accommodate  the  pub- 
lic service  of  the  county,'  was  held  not  to 
create  a  base  fee  (Kerlin  v.  Campbell,  15 
Pa.  St.  500);  as  also  a  grant  to  county  com- 
missioners and  their  successors  in  offlce  of 
a  tract  of  land,  with  a  brick  court-house 
thereon  erected,  'in  trust  for  the  use  of  said 
county,  in  fee-simple,'  the-  statute  under 
which  the  purchase  was  made  authorizing 
the  acquisition  of  the  property  for  the  pur- 
pose of  a  court-house,  jail,  and  offices  for 
the  safe-keeping  of  the  records  (Seebold  v. 
Shitler,  34  Pa.  St.  133).  Similarly  a  devise 
of  land  to  a  religious  body  in  fee  'there  to 
build  a  meeting-house  upon,'  etc.,  was  held 
to  pass  an  unqualified  estate  (Griffitts  v. 
Cope,  17  Pa.  St.  96);  as  was  also  a  grant  to 
a  congregation,  'for  the  benefit,  use,  and  be- 
hoof of  the  poor  of  said  *  *  *  congrega- 
tion, *  *  *  forever,  and  for  a  place  to 
erect  a  house  of  religious  worship,  for  the 
use  and  service  of  said  congregation,  and,  if 
occasion  shall  require,  a  place  to  bury  their 
dead'  (Brendle  v.  German  Reformed  Congre- 
gation, 33  Pa.  'St.  415). 

"There  are,  however,  about  these  cases, 
some  features  which  must  not  be  overlooked. 
In  Kerlin  v.  Campbell,  supra,  the  conveyance 
was  absolute,  and  the  matter  I'elied  on  to  de- 
base the  fee  granted  by  it  was  contained  in 
another  instrument,  to  which  the  original 
grantor  was  not  privy.  Page  506.  In  See- 
bold V.  Shitler,  supra,  the  act  of  assembly 
authorizing  the  purchase  required  a  convey- 
ance to  the  commissioners  of  'a  full  and  suf- 
ficient deed  in  fee-simple.'  The  court  says 
that  'no  conveyance  for  a  less  estate,  or  for 
a  limited  fee,  clogged  and  confined  with  con- 
ditions or  qualifications  of  any  sort,  would 
have  fulfilled  the  requirements  of  the  legis- 
lature;' and  'any  other  construction  would 
make  the  deed  a  fraud  upon  the  citizens  who 
erected  the  court-house,  and  upon  the  coun- 
ty that  erected  afterwards  the  county  of- 
fices and  the  county  jail,  by  a  large  ex- 
penditure of  the  county  funds.'  Page  137. 
But,  further,  it  is  apparent  in  all  the  cases 
cited  that  the  purposes  for  which  the  grants 
were  made  were  really  all  the  purpos-..?  for 
which  the  grantees  could  lawfully  hold  real 
estate.  Unless,  therefore,  the  absurd  posi- 
tion be  assumed  that  a  corporation  can  in  no 
event  take  a  fee-simple  absolute,  because  its 
power  to  hold  land  is  limited  to  the  uses  for 
which  it  is  authorized  to  acquire  and  employ 
it,  a  declaration  in  the  grant  that  it  is  con- 
veyed for  those  uses  cannot  be  deemed  to  im- 
port a  limitation  of  the  fee.  Expressio  eorum 
quae  tacite  insunt  nihil  operatur.  Such  a 
declaration  can  amount  to  no  more  than  an 
explicit  assertion  of  the  intended  legality  of 
the  grant.     As  was  said  in  the  case  of  Grif- 


POSSIBILITY  OF  KEVERTER. 


VSd 


fitts  V.  Cope,  supra,  at  page  100:  'The  use  to 
which  the  granting  clause  declares  that  this 
land  is  to  be  applied  is  of  the  character  which 
the  law  requires,  and  is  the  most  ordinary  pur- 
pose for  which  religious  societies  require  land. 
The  presumption  would  therefore  appear  fair 
and  obvious  that  by  that  declaration  the  de- 
visor merely  meant  to  make  the  grant  lawful 
upon  its  face.'  And  in  Brendle  v.  German 
Reformed  Congregation,  supra,  at  page  42o: 
'What,  then,  is  the  efficacy  of  the  declaration 
that  the  congregation  holds  the  land  for  the 
use  of  its  poor,  for  a  church,  and  for  a  burial 
ground?  Nothing,  except  to  show  that  they 
hold  it  for  the  purpose  for  which  the  law  al- 
lows congregations  to  hold  land;  not  to  limit 
their  own  title,  but  to  recognize  the  uses  al- 
lowed by  law.'  It  is  at  once  apparent  that 
the  present  case  is  wholly  different,  in  that 
the  purpose  expressed  in  this  grant  is  not  one 
for  which  counties  usually  acquire  a  fee- 
simple  in  lands.  What  those  purposes  may 
lawfully  be  since  the  act  of  April  15,  1834, 
is  set  forth  in  the  proviso  to  section  3,  cl.  2, 
of  that  statute.  1  Brightly,  Purd.  Dig.  p. 
3l>4,  pi.  14.  Before  its  enactment,  the  gen- 
eral power  of  county  commissioners  to  take 
lands  was  confined  to  such  as  were  bought  in 
by  them  to  secure  the  county  debts,  on  pro- 
cess from  the  courts,  or  their  own  process, 
authorized  by  law%  or  mortgages  given  to  se- 
cure the  county  debts.  Yankirk  v.  Clark, 
16  Serg.  &  R.  286,  290.  That  they  might  en- 
ter into  a  valid  agreement  with  a  property 
holder  adjoining,  e.  g.,  a  county  prison,  not 
to  build  against  its  walls,  with  a  view  to  pre- 
venting the  escape  of  prisoners  while  the 
building  was  used  as  a  place  for  their  confine- 
ment, seems  scarcely  doubtful.  And,  if  they 
might  do  that  by  a  mere  agreement,  they 
might,  in  order  to  be  in  position  to  insure  the 
accomplishment  of  the  purpose,  do  so  by 
taking  a  fee  in  the  property  to  be  kept  open 
for  such  purpose.  But  they  could  not  take 
more;  they  could  not  make  an  investment 
of  more  than  Avas  required  by  the  immedi- 
ate and  lawful  object  in  view;  that  is  to 
say,  whilst  they  could  take  a  fee,  that  fee 
must  be  determinable  upon  the  cessation  of 
the  necessity  or  occasion  of  its  acquisition 
and  the  possibility  of  serving  the  purpose  of 
its  creation.  It  is  surely  not  unreasonable 
to  suppose  that  this  limitation  upon  the  com- 
missioners' powers,  and  the  contingency  that 
at  some  future  time  the  use  of  their  property 
as  a  jail  should  be  abandoned,  were  in  the 
minds  of  the  parties  to  the  deed  of  1st  De- 
cember, 1772.  and  had  some  influence  in  fix- 
ing the  consideration  for  the  grant.  The  em- 
ployment of  the  word  'forever'  seems  insig- 
nificant in  this  connection;  for,  as  has  been 
seen,  the  estate  might  continue  forever,  and 
so,  in  that  case,  w^ould  the  purpose.  On  the 
other  hand,  a  grant  of  an  estate  'forever'  may 
yet  be  but  of  a  life-estate.  2  Bl.  Comm.  p. 
107.  Hence  there  is  a  peculiar  propriety  in 
applying  to  the  parties'  declaration  of  pur- 
pose the  familiar  principle  of  interpretation, 
GATES,R.P.— 13 


expressum  facit  cessare  tacitum.  That  dec- 
laration shows  but  one  purpose,  and  shows  it 
clearly.  It  was  not  to  afford  light,  air,  or 
access  to  the  adjoining  tenement,  to  add  any- 
thing to  it  that  was  needful  or  convenient  to 
its  use  and  enjoyment,  nor  to  increase  the 
size  of  the  plot  upon  which  the  prison  stood, 
or  to  enhance  its  value,  set  off  its  architec- 
tural proportions,  or  protect  it  against  fire. 
It  was  simply  to  serve  the  one  declared  ob- 
ject,—the  hindrance  of  the  escape  of  prison- 
ers,—which  the  erection  of  walls  contiguous 
to  those  of  the  prison  would  facilitate. 

"In  view  of  all  the  circumstances,  there 
seems  to  arise  from  the  express  declaration 
of  purpose  a  necessary  implication  of  the  ex- 
clusion of  every  other.  It  is  a  rule  in  the 
construction  of  a  statute,  pleading,  contract, 
will,  and  other  instrument,  that  what  is 
clearly  implied  is  as  much  a  part  of  it  as 
what  is  expressed.  U.  S.  v.  Babbitt,  1  Black, 
61;  Hanchett  v.  Weber,  17  111.  App.  114. 
The  instrument  under  consideration  is,  there- 
fore, to  be  treated  precisely  as  if  it  contained 
a  declaration  that  the  grant  was  for  the  pur- 
pose mentioned,  and  no  other.  But,  where 
an  estate  is  conveyed  in  fee  for  a  specified 
purpose  "and  no  other,'  the  fee  is  a  base  fee, 
determinable  upon  the  cessation  of  the  use  of 
the  property  for  that  purpose.  Kirk  v.  King, 
3  Pa.  St.  43G;  Scheetz  v.  Fitzwater,  5  Pa.  St. 
126.  It  is  scarcely  needful  to  add  that  those 
decisions  which  relate  to  the  construction  of 
a  deed  as  conveying  an  estate  on  condition 
subsequent,  and  deny  that  effect  to  a  recital 
that  the  grant  is  upon  a  certain  consideration, 
or  to  a  collateral  covenant  (see  Cook  v. 
Ti-imble,  9  Watts,  15;  Canal  Co.  v.  Young,  1 
Whart.  410;  Perry  v.  Scott,  51  Pa.  St.  lit); 
First  Methodist  Episcopal  Church  v.  Old  Co- 
lumbia Public  Ground  Co.,  103  Pa.  St.  608), 
are  inapplicable.  The  purpose  here  is  not  re- 
cited as  part  of  the  consideration,  nor  is  its 
observance  collaterally  covenanted.  Xor  is 
the  estate  here  granted  one  upon  condition. 
Although  there  is  some  confusion  in  decisions 
and  text-books  concerning  these  two  species 
of  estates,  there  is  a  radical  distinction— and 
one,  as  w'e  pointed  out  in  the  recent  decision 
of  this  court  in  Schaeffer  v.  Messer.-;mith, 
Com.  PI.  Berks  Co.,  No.  105.  May  term,  1890, 
well  established  in  the  jurisprudence  of  tliis 
state — between  a  fee  determinable  by  limita- 
tion and  an  estate  upon  condition  subse- 
quent. 2  Sharsw.  &  B.  Am.  Cas.  Real  Prop, 
pp.  19,  20.  Nor,  again,  does  the  case  of  Yen- 
ton's  Appeal,  105  Pa.  St.  125,  relied  on  by  re- 
spondents, bear  upon  the  question  in  hand. 
That  was  the  case  of  an  easement  created  by 
a  covenant  contamed  in  a  deed,  in  terms  per- 
petual, not  to  build  upon  the  north  or  east  of 
the  grantor's  church  building,  excepting  that, 
if  the  same  should  at  any  time  cease  to  be 
used  for  that  purpose,  a  wall  might  be  built 
on  the  east  side.  This  was  a  limitation  ap- 
pointed by  the  parties  themselves  upon  the 
effect  of  the  abandonment  of  the  then  use  of 
the   dominant   leuemeut;    and   in   restricting 


194 


ESTATES   IN   REAL  PROPERTY. 


the  owner  of  tlie  servient  one  to  the  terms  of 
this  limitation  the  supreme  court  in  effect 
but  applied  the  principle  which  we  have  ap- 
plied to  this  case,— expressum  facit  cessare 
tacitum.  Of  course,  upon  the  determination 
of  a  base  fee,  the  property  reverts  to  the 
grantor  (2  Bl.  Comm.  pp.  109,  110)  without 
any  claim  or  act  on  his  part,  where  it  is  de- 
terminable by  limitation  (Schaeffer  v.  Mes- 
sersmith,  supra).  In  the  meanwhile  the  es- 
tate is  out  of  him,  and  all  that  remains  to 
him  is  the  mere  possibility  of  reverter.  4 
Kent,  Comm.  p.  10.  Yet  this  mere  possibility 
is  capable  of  transmission  to  his  grantees, 
and  will  pass  to  them  under  a  conveyance  of 
the  reversion.  Scheetz  v.  Fitzwater,  5  Pa. 
St.  126. 

"We  have  next  to  pass  upon  the  questions 
raised  by  the  demurrer  and  by  the  submis- 
sion of  the  cause  upon  bill  and  answer. 

"First.  As  to  the  demurrer.  Taking  up 
the  grounds  of  demurrer  as  they  stand  upon 
the  record,  we  find: 

"(1)  An  allegation  contained  in  the  first  and 
second  grounds,  in  substance,  that  the  suit 
ought  to  be  against  the  county  of  Berks,  and 
not  against  the  commissioners  individually. 
The  act  of  AprU  15,  1834  (P.  L.  p.  537),  pro- 
vides in  section  9  (1  Brightly,  Purd.  Dig.  p. 
364,  pi.  18)  that  the  titles  to  all  and  singular 
the  court-houses,  jails,  prisons,  and  work- 
houses, together  with  the  lots  of  land  there- 
unto belonging  or  appertaining,  as  they  now 
are  or  heretofore  have  been  vested  in  the 
commissioners  of  the  respective  counties  for 
the  several  use  of  the  said  counties,  respec- 
tively, shall  be,  and  they  are  hereby  declared 
to  be,  vested  in  the  respective  counties,  for 
the  use  of  the  people  thereof,  and  for  no  oth- 
er use;  and  section  3  of  the  same  statute  (1 
Brightly,  Purd.  Dig.  p.  364,  pi.  13)  confers 
upon  the  sevei'al  counties  capacity,  as  bodies 
corporate,  to  sue  and  be  sued  as  such  by  the 
corporate  name.  "Whilst,  as  a  general  rule, 
land  cannot  be  appurtenant  to  land  (Grubb  v. 
Guilford,  4  Watts,  223,  244),  yet  it  may  be 
made  so  by  the  intent  and  acts  of  the  parties 
(Id.;  Grubb  v.  Grubb,  74  Pa.  St.  25,  33).  The 
use  of  this  strip  of  land  permitted  by  the 
deed  of  1st  December,  1772,  indicates  such  an 
intention,  at  least  sufficiently  to  permit  it  to 
be  regarded  as  an  appurtenance  to  the  jail 
property  within  the  spirit  of  the  act  of  1834. 
and,  as  such,  to  the  extent  of  the  estate  held 
by  the  commissioners  to  have  thereby  be- 
come vested  in  the  county  of  Berks.  This 
suit,  therefore,  under  the  decision  of  Wilson 
V.  Commissioners,  7  Watts  &  S.  197,  should 
have  been  brought  against  the  county.  But 
counsel  for  plaintiff  and  for  the  demurrants 
have  agreed  that,  in  event  of  the  court's  so 
holding,  the  bill  should  be  amended  by  substi- 
tuting the  county  of  Berks  as  defendant  in 
place  of  the  commissioners  named.  Accord- 
ingly we  shall  treat  the  bill  as  properly 
brought  against  the  county,  and  the  formal 
amendment  may  be  made  hereafter.  The 
.other  defendants  are  not  thereby  prejudiced. 


Having  answered  to  the  merits,  the  objection 
could  not,  it  would  seem,  be  now  made  by 
them  (see  Glover  v.  Wilson,  6  Pa.  St.  290, 
292;  Fritz  v.  Commissioners,  17  Pa.  St.  130, 
134,  135),  and,  besides,  'if  the  misjoinder  is 
of  parties  as  defendants,  those  only  can  de- 
mur who  are  improperly  joined'  (Story,  Eq. 
PI.  §  544). 

"(2)  The  next  ground  of  demurrer  is  that 
the  interests  of  the  defendants  are  not  iden- 
tical, but  in  conflict,  and  therefore  they 
should  not  be  joined  in  this  proceeding.  This 
assertion  is  based  upon  a  misconception  of 
the  effect  of  the  instrument  of  1st  December, 
1772.  There  cannot  be  any  question  of  con"- 
flicting  interests  between  these  defendants. 

"(3)  It  is  next  asserted  that  this  court  has 
no  jurisdiction  to  declare  null  and  void  the 
deed  of  1st  December,  1772,  inasmuch  as  the 
same  confers  substantial  rights  upon  the 
county  of  Berks,  or  its  grantee,  and  the  title 
of  said  premises  depends  upon  the  same. 
What  was  the  nature  and  extent  of  these 
rights,  and  what  the  character .  of  the  title, 
has  already  been  declared.  It  is  only  neces- 
sary in  this  connection  to  examine  into  the 
jurisdiction  of  this  court  to  grant  the  relief 
prayed  for.  The  particular  form  of  equity 
jurisdiction  here  invoked  is  that  which  is 
exercised  to  remove  clouds  upon  title;  the  re- 
lief in  such  cases  being  granted  on  the  prin- 
ciple quia  timet;  that  is,  that  the  deed  or 
other  instrument  constituting  the  cloud  may 
be  used  injuriously,  or  vexatiously  embarrass 
or  affect  the  plaintiff's  title  to  real  estate.  3 
Pom.  Eq.  Jur.  §  1398.  The  existeijce  of  this 
as  an  independent  source  or  head  of  jurisdic- 
tion in  the  courts  of  this  state,  not  requiring 
any  accompaniment  of  fraud,  accident,  mis- 
take, trust,  or  account,  or  any  other  basis  of 
equitable  intervention,  is  abundantly  estab- 
lished. Dull's  Appeal,  113  Pa.  St.  510,  6  Atl. 
540;  Stewart's  Appeal,  78  Pa.  St.  88;  Wilson 
V.  Getty,  57  Pa.  St.  266;  Eckman  v.  Eckman, 
55  Pa.  St.  269,  273;  Kennedy  v.  Kennedy,  43 
Pa.  St.  413,  417.  The  rules  as  to  the  status 
of  the  plaintiff  to  invoke  the  exercise  of  this 
i  jurisdiction,  as  laid  down  in  3  Pom.  Eq.  Jur. 
j  §  1399,  note  4,  p.  36,  approved  in  DuU's  Ap- 
i  peal,  supra,  at  pages  517,  518,  113  Pa.  St., 
j  and  page  543,  6  Atl.,  are  as  follows:  'When 
the  estate  or  interest  to  be  protected  is  equita- 
ble, the  jurisdiction  should  be  exercised, 
I  whether  the  plaintiff  is  in  or  out  of  posses- 
sion; but  when  the  estate  or  interest  is  legal 
in  its  nature,  the  exercise  of  the  jurisdiction 
depends  upon  the  adequacy  of  legal  remedies. 
Thus,  for  example,  a  plaintiff  out  of  posses- 
sion, holding  the  legal  title,  will  be  left  to  his 
remedy  by  ejectment  under  ordinary  circum- 
stances; but  when  he  is  in  possession,  and 
thus  unable  to  obtain  any  adequate  legal  re- 
lief, he  may  resort  to  equity.'  The  occasions 
for  and  the  mode  of  the  exercise  of  the  juris- 
diction are  stated  to  be  the  following:  'When- 
ever a  deed  or  other  instrument  exists  which 
may  be  vexatiously  or  injuriously  used 
against  a  party  after  the  evidence  to  impeach 


POSSIBILITY  OF  KEVERTER. 


lyo 


or  invalidate  it  is  lost,  or  which  may  throw  a 
cloud  or  suspicion  over  his  title  or  interest, 
and  he  cannot  immediately  protect  or  main- 
tain his  right  by  any  course  or  proceedings 
at  law,  a  court  of  equity  will  afford  relief  by 
directing  the  instrument  to  be  delivered  up 
and  canceled,  or  by  making  any  other  decree 
which  justice  or  the  rights  of  the  parties  may 
require.'     xMartin  v.  Graves,  5  Allen,  GOl,  ap- 
proved in  Stewart's  Appeal,   supra,   at  page 
9G,    and   DuU's  Appeal,    supra,   at   page   516, 
113  Pa.  St.,  and  page  042,  6  Atl.     And  again: 
'If  a  case  is  made  out  which  will  justify  the 
court  in  declaring  a  contract  at  an  end,  it  will 
in  general  be  ordered  to  be  delivered  up  to  be 
canceled.'   Wilson  v.  Getty,  supra,  at  page  270. 
It  is  objected,  however,  that  'the  proper  con- 
struction of  a  deed  is  not  a  subject  of  equitable 
jurisdiction.'     Grubb's  Appeal,  90  Pa.  St.  228, 
233.     No  doubt  there  is  not  in  this  state,  as 
there  is  in  some  others,  any  special  jurisdiction 
conferred  upon  the  courts  of  equity  by  reason 
of  which  they  may  be  called  upon  to  declare 
the  construction  of  a  deed  or  will  or  other  in- 
strument; nor,  of  course,  will  the  mere  fact  that 
the  proper  construction  of  such  is  in  dispute 
confer  chancery  jurisdiction,  in  the  absence 
of  some  other  recognized  basis  of  equitable 
intervention.     But   it   will    scarcely   be   pre- 
tended that  where  a  party  has  no  legal  reme- 
dy   whereby    to   protect    his    property    against 
the    assertion    of    an    unfounded    or    expired 
claim    the   established   equity   jurisdiction    is 
ousted  by  the  mere  fact  that  incidentally  it 
will  be  necessary  to  put  a  construction  upon 
a  written  instrument.    Such  a  doctrine  would 
practically  amount  to  a  denial  of  the  juris- 
diction   itself.     Again,    it   is    urged    upon    us 
that  a  court  of  equity  has  no  jurisdiction  to 
settle  a  disputed  legal  right  to  land  on  a  bill 
in   equity   filed    by   the   i)arty    in   possession, 
averring  that  a  multiplicity  of  suits  at  law 
niay  result  to  redress  threatened  trespasses. 
Washburn's    Appeal,    105    Pa.    St.    480.     Of 
course  not;    but  that  is  not  this  ease.     In  ac- 
tions respecting  real  property,  if  there  be  no 
equitable  ground  of  relief  involved,  the  rights 
of   the  parties   must  be  determined  at   law; 
the  interference  of  equity  in  such  a  case  rest- 
ing on  the  principle  of  a  clear  right  to  the 
enjoyment  of  the  subject  in  question,  and  an 
injurious   interruption   of   that   right,    which, 
upon  just  and  equitable  grounds,  ought  to  be 
prevented,    and    the    party    contesting    that 
right,   in   the  first   instance   dependent  upon 
conflicting    proofs,    being    entitled    to    have 
them  passed  upon  by  a  jury.     Id.     A  very 
different  case  is  presented  when  the  interven- 
tion of  the  court  is  asked  upon  a  recognized 
ground  of  equitable  jurisdiction;    when   the 
rights  of  the  parties  result   from   an  undis- 
puted written  instrument,  aided  by  facts  that 
are   admitted;    when   the   injury   complained 
of,  arising  from  conceded  acts,  is  partly  sub- 
sisting and  actual  and  partly  anticipated,  and 
of  such  a  character  as  to  afford  no  redress  at 
law..    No  doubt,  if  the  plaintiff  were  to  pro- 
ceed to  build  upon  the  strip  of  land  in  dis- 


pute, it  is  possible  that  a  suit  at  law  would 
be  instituted  against  him  in  which  his  rights 
would  eventually  be  passed  upon.  But  it  is 
equally  possible  that  no  such  suit  would  be 
brought,  at  least  for  a  period  of  years.  In 
the  meanwhile,  the  title,  not  merely  the  pos- 
session, would  remain  doubtful  and  unmar- 
ketable. But  the  owner  of  property  has  a 
right,  not  only  to  use  it,  but  to  sell  it;  and 
in  tliat  right,  incapable  of  being  enforced  in 
any  legal  action  he  can  institute,  he  is  enti- 
tled to  be  protected.  This  ground  of  demur- 
rer must  therefore  fall. 

"(4)  The  last  ground  is  that  the  plaintiff  is 
not  entitled  to  relief  in  this  proceeding  under 
the  premises,  as  her  predecessor  reserved  for 
himself  and  his  assigns  certain  rights,  which 
it  is  not  averred  have  been  interfered  with. 
What  has  already  been  said  sufficiently  dis- 
posed of  this  ground  of  demurrer,  which  can- 
not be  sustained, 

"Second.  As  to  the  answer.  But  little  re- 
mains to  be  said  in  passing  upon  the  submis- 
sion on  bill  and  answer.  The  allegation  of 
the  respondents  is,  in  substance,  that  the  in- 
strument of  1st  December,  1772,  invested  the 
grantees  therein  with  an  indefeasible  right, 
which,  by  the  deed  of  2d  April,  1849,  passed 
to  William  Rhoads,  Sr.,  as  appurtenant  to  the 
old  jail  property.  The  estate  of  the  county 
of  Berks,  under  the  instrument  of  1st  Decem- 
ber, 1772,  being  a  base  fee,  whether  principal 
or  appurtenant  to  the  old  jail  property,  it 
could  pass  to  its  vendee  nothing  more  than  it 
had,  i.  e.,  as  to  this  strip  of  ground,  nothing, 
if  the  estate  had  terminated  before  the  date 
of  the  conveyance  by  an  abandonment  of  the 
purposes  of  the  grant;  or  an  estate  detei-mina- 
ble  upon  such  abandonment,  if  prior  to  it  in 
date.  'If  the  owner  of  a  determinable  fee 
conveys  in  fee,  the  determinable  quality  of 
the  estate  follows  the  transfer,  and  this  is 
founded  upon  the  sound  maxim  of  the  com- 
mon law  that  nemo  potest  plus  juris  in  alium 
transferre  quam  ipse  habet'  4  Kent,  Comm. 
p.  10.  Indeed,  it  is  not  clear  how,  under  the 
act  of  assembly  authorizing  the  sale  and  con- 
veyance under  which  respondents  claim,  any- 
thing more  could  pass.  If  it  were  conceded 
that  the  estate  of  the  county,  under  the  deed 
of  1st  December,  1772,  was  a  fee-simple  abso- 
lute, it  would  still  be  true  that  the  statute 
authorized  but  the  sale  of  'what  is  now  call- 
ed the  "Old  Jail  Property"  in  the  city  of 
Reading,  consisting  of  the  old  jail  buildings 
and  the  appurtenances  and  a  lot  of  ground, 
being  the  corner  of  North  Fifth  and  Washing- 
ton streets,  in  the  said  city  of  Reading,  and 
having  0.0  feet  on  said  North  Fifth  Street. 
and  230  feet  on  Washington  street.'  It  was 
held  in  Seebold  v.  Shitler,  34  Pa.  St.  133,  137, 
that  a  deed  from  a  private  grantor  to  the 
county  must  be  deemed  to  co:..-.\y  what  the 
statute  required.  It  would  seem  but  a  cor- 
ollary to  this  rule  that  a  dc-ed  from  the  coun- 
ty to  a  private  grantee  cannot  convey  more 
than  the  statute  authorized.  Upon  the  bill 
and  answer  it  is  clear  that  the  respondents 


196 


ESTATES   IN   REAL  PROPERTY. 


have  no  interest  in  or  right  over  the  eight 
feet  wide  strip  of  ground  to  the  north  of 
their  tenement. 

"In  the  consideration  of  this  case  it  has 
been  assumed  (nor  was  it  questioned  upon 
the  argument)  that  the  conveyances  by  plain- 
tiff's predecessors  in  title,  during  the  continu- 
ance of  the  estate  granted  by  the  deed  of 
December  1,  1772,  included  the  reversion  of 
this  strip  of  land.  The  usual  form  of  con- 
veyances in  fee-simple  contains  such  a  grant, 
and  it  may  be  supposed  that  those  forming 
the  chain  of  plaintiff's  title  were  not  excep- 
tional in  this  respect.  Yet  the  fact  ought  to 
be  made  to  appear  in  this  record,  and  for  that 
purpose   leave   will  be   given   to  plaintiff   to 


amend  her  bill  by  proper  averments.  That 
done,  plaintiff  will  be  entitled  to  the  relief 
prayed  for,  and  counsel  will  prepare  and  sub- 
mit the  necessary  decrees  in  accordance  with 
the  views  expressed  in  this  opinion." 

J.  H,  Jacobs,  H.  P.  Keiser,  and  J.  H.  Zwei- 
zig,  for  appellant  E.  B.  Wiegand,  for  ap- 
pellee. 

PER  CURIAM.  The  opinion  of  the  learn- 
ed judge  of  the  court  below  is  so  full  and  sat- 
isfactory that  we  affirm  the  decree  for  the 
reasons  there  given  by  him.  The  decree  is 
affirmed,  and  the  appeal  dismissed,  at  the 
costs  of  the  appellant. 


REMAINDERS. 


197 


HUNT  et  al.  v.  HALL. 

(37  Me.  303.) 

Supreme  Judicial  Court  of  Maine.    18o3. 

Fox  &  Simmons,  in  support  of  exceptions. 
Mr.  Barrows  and  W.  P.  Fessenden,  contra. 

APPLETON,  J.  This  is  an  action  of  the 
case  in  the  nature  of  waste,  and  is  brought  un- 
<ler  the  provisions  of  Rev.  St.  c.  129,  §§  4,  5. 

Ephriam  Hunt,  under  whom  the  plaintiffs  de- 
rive title,  by  his  last  will  gave  a  life  estate  in 
the  premises  in  which  waste  is  alleged  to  have 
been  committed,  to  his  wife,  and  after  her  de- 
<oase,  directed  that  equal  division  should  be 
made  among  all  his  children,  and  the  heirs  of 
such  as  might  then  be  deceased,  of  all  his  prop- 
erty, both  real  and  personal.  The  tenant  for 
life  is  still  living,  and  the  defendant  represents 
her  estate. 

The  rights  of  the  parties  depend  upon  the  na- 
ture of  the  estate  which  was  devised  by  the  will 
of  Ephriam  Hunt,  which  was  in  the  words  fol- 
lowing: "After  the  decease  of  my  dear  wife, 
my  will  is  that  my  executor  hereafter  named 
cause  an  equal  division  to  be  made  among  all 
my  children  and  the  heirs  of  such  as  may  then 
be  deceased."  The  persons  who  are  to  take  are 
"  not  those  who  are  living  at  the  death  of  the  tes- 
tator. The  division  is  not  then  to  take  place. 
This  is  to  be  done  at  a  subsequent  and  uncertain 
period.  If  the  estate  were  to  be  construed  as 
vesting  at  the  death  of  the  testator,  an  heir 
might  convey  by  deed  his  share  of  the  estate, 
and  if  he  should  decease  before  the  termination 
of  the  life  estate,  leaving  heirs,  his  conveyance 
Avould  defeat  the  estate  of  such  heirs.-  This 
would  be  against  the  express  provisions  of  the 
will,  which  provide  that  the  estate  should  be 
divided  '"among  his  children  and   the  heirs  of 


such  as  may  then  be  deceased."  By  the  terms 
of  the  will,  the  estate  is  not  to  vest  till  after 
the  death  of  the  widow,  and  then  the  division  is 
to  ensue.  Till  then  there  is  a  contingency  as 
to  tlie  persons  who  may  take  the  estate. 

"Contingent  or  executory  remainders,  (where- 
by no  present  interest  passes,)  are  when  the  es- 
tate in  remainder  is  limited  to  take  efEect,  either 
to  a  dubious  and  uncertain  person,  or  upon  a 
dubious  or  uncertain  event;  so  that  the  particu- 
lar estate  may  chance  to  be  determined  ami  the 
remainder  never  take  effect."  2  Bl.  Comm. 
1G9.  In  Olney  v.  Hull,  21  Pick.  311,  the  words 
of  the  devise  were  almost  identical  with  those 
in  the  case  now  under  consideration,  and  the 
court  held  that  until  the  death  of  the  widow, 
it  was  uncertain,  who  would  then  be  alive  to 
take,  and  that  therefore  no  estate  vested  in  any 
one  before  that  event  happened.  Where  an  es- 
tate is  limited  to  two  persons  during  their  joint 
lives,  remainder  to  the  survivor  of  them  in  fee, 
such  remainder  is  contingent,  because  it  is  un- 
certain which  of  them  will  survive.  2  CruLse. 
Dig.  tit.  16,  c.  1,  §  21,  "Remainder."  So  where 
one  devised  lands  to  his  daughter  H.  and  her 
husband,  for  their  respective  lives,  and  after 
their  death  to  the  heirs  of  H.,  it  was  held  that 
the  remainder  was  contingent  until  the  death  of 
H.,  and  then  vested  in  the  persons  who  were 
then  heirs.  Richardson  v.  Wheatland,  7  Mete. 
(Mass.)  1G9;  Sisson  v.  Seabury,  1  Sumn.  23."), 
Fed.  Cas.  No.  12,913. 

It  is  obvious  that  by  the  terms  of  the  will,  the 
plaintiffs  took  a  contingent  and  not  a  vested 
remainder.  They  are  not  within  the  provi- 
sions of  Rev.  St.  c.  129,  and  consequently  are 
not  entitled  to  maintain  this  action. 

Exceptions  overruled.      Nonsuit  confirmed. 

SHEPLEY,  C.  J.,  and  TENNEY,  J.,  con- 
curred. 


198 


ESTATES   IN   REAL  FROrERTY. 


HOVEY  T.  XELLIS  et  al. 

LIGHT  V.  SAME. 

(57  N.  W.  255,  98  Mich.  374.) 

Supreme  Court  of  Michigan.     Jan.  9,  1894. 

Appeal  from  circuit  court,  Wayne  county, 
in  chancery;    George  Gartner,  Judge. 

Two  actions— one  by  Frank  D.  Hovey 
against  Caroline  Nellis  and  Mary  M.  Beck, 
and  the  other  by  Frank  J.  Licht  against  the 
same  defendants— to  quiet  title  to  certain 
real  estate.  From  a  decree  for  plaintiff  in 
each  case,  defendants  appeal.    Affirmed. 

Gray  &  Gray,  (W.  J.  Stuart,  of  counsel,) 
for  appellant  Caroline  Nellis.  Bowen,  Doug- 
las &  Whiting,  (W.  J.  Stuart,  of  counsel,)  for 
appellant  Mary  M.  Beck.  O.  E.  Angstman, 
(Clark  &  Pearl,  of  counsel,)  for  appellee. 

GRANT,    J.     The    controversies    in    these 
two   suits   are  identical,   and   are   governed 
by  the  same  facts.     In  this  opinion  we  wiU 
refer  only  to  the  case  of  Hovey  v.  Nellis. 
The  bill  is  filed  to  quiet  the  title  to  outlet 
No.  4  of  the  L.  Moran  farm  in  the  city  of 
Detroit.     This  farm  was  a  narrow  strip  of 
land  a  few  hundred  feet  wide,  and  extending 
back  from  the  Detroit  river  about  three  miles. 
It  was  divided  into  nine  lots,  numbered  from 
1  to  9,  inclusive.     Lot  No.  9  lay  furthest  from 
the  river,  and  included  60.53  acres.     It  was 
subsequently  subdivided  into  19  outlots,  num- 
bered from  1  to  19,  inclusive.     The  contro- 
versy  in   this  case  relates  to  outlot  No.  4. 
Louis  Moran,  the  owner  of  the  entire  farm, 
made  his  will  in  1825,  and  died  in  1829.    He 
left,  sm-viving,  a  widow  and  several  children. 
He   had   made  certain   deeds  of  gift  to  his 
other    children,    aside    from    his    son    Louis, 
which  he  recognized  in  his  will.     All  his  real 
estate  not   deeded  to  his   other   children  he 
devised  as  follows:    (1)  To  his  wife,  Kather- 
ine,  for  life.     (2)  To  his  son  Louis  for  life, 
charged  with  the  support  of  one  of  the  testa- 
tor's  daughters.     (3)  To  his   daughter-in-law 
Maria,  wife  of  his  son  Louis,  during  widow- 
hood.    (4)  "The  remainder  of  my  said   real 
estate  I  give  and  devise  to  the  children  of 
my  said  son  Louis  Moran,  and,  if  my  said 
.son  Louis  shall  die  leaving  no  children,  then 
to   my   heirs   according  to  law."    Complain- 
ant claims  by  purchase  through  mesne  con- 
veyance from  the  devisees  of  Louis  Moran, 
Sr.     The  defendants  claim  as  heirs  of  said 
Louis  Moran,    Sr.     It  is   conceded  that  the 
devise   to  Maria  is  void  under   the  statute, 
but  that  it  does  not  affect  the  validity  of 
the   remainder    of   the    will.     Louis    INIoran, 
Jr.,  had  three  children,— the  defendant  Caro- 
line Nellis,  Octavia  M.  Sylvester,  and  James 
L.   Moran.     Mrs.    Sylvester   died  in   Novem- 
ber,  1861,  leaving  one  child,— the  defendant 
Mary   M.   Beck.     James    L.   Moran  is   dead, 
but  the  date  of  his  death  is  unknown.     He 
Ijad  one  child,  who  died  in  May,  1886-     In 
1845.  Katherine  Moran.  the  widow,  and  Louis 
Moran,  Jr.,  and  his  wife,  conveyed  by  deed 


all   their   interest  in   the  land   to   the  three 
children    of    Louis    Moran,    who    were    then 
minors.     One  J.  B.  Vallee  was  duly  appoint- 
ed their  guardian.     In  1847  the  guardian  fil- 
ed a  petition  in  the  circuit  comrt  for  the  coun- 
ty of  Wayne  in  chancery,  praying  leave  to 
sell  theu-  real  estate  under  the  provisions  of 
the    statute.     The   proceedings    taken    there- 
under  were  regular,   and   on  November   16, 
1849,  pm-suant  to  the  decree  of  the  com-t,  a 
deed  was  duly  executed  by  the  guardian,  con- 
veying the  land  in  question  to  John  A.  Damm 
and  Joseph  Grones,  from  whom  complainant 
derives  his  title.     Louis  Moran,  Jr.,  died  June 
20,  1809,   leaving  as  heirs  his  two  children, 
James    L.    Moran    and    Caroline   Nelhs,    and 
his  grandchild  Mary  M.  Beck.     December  11, 
1871,    Caroline  Nellis  brought  suit  in   eject- 
ment against  Jacob  Brown  to  recover  posses- 
sion of  "the  imdivided  half  of  lot  4  of  the 
Louis  Moran  farm."    No  proceeding  has  ever 
been  taken  in  this  suit  other  than  to  file  dec- 
laration, and  to  file  proof  of  alleged  service 
thereof  upon  Brown.     By  mistake  the  laud 
in  the  deed  to  Damm  and  Grones  was  erro- 
neously described  as  outlet  5  instead  of  outlet 
4.     It  is   conceded    by   the   defendants    that 
this  was  an  error  apparent  upon  the  record, 
and  corrects  itself.     Complainant  claims  that, 
at  the  time  of  the  deed  to  Damm  and  Grones, 
the  title  of  this  land  was  vested  in  the  chil- 
dren of  Lotus  Moran,  Jr.,  and  that,  the  pro- 
ceeding  in   chancery    to   sell   being   regular, 
Damm   and   Grones    became  vested   by    the 
deed  to  them  of  the  entire  utle  in  fee  sim- 
ple.    He  also  claims  that,  if  this  be  not  so, 
still  he  has  obtained  title  by  exclusive  and 
adverse  possession  for  more  than  20  years. 
The  defendants   insist   that  the  only   estate 
held  by   these   children   at    the  time  ^of   the 
guardian's  deed  was  a  contingent  remainder, 
and  not  a  vested  remainder,  and  that,  while 
Louis    Moran,    Jr.,    lived,    it    was    uncertain 
whether  he  would  leave  any   children,   and 
therefore  it  was  uncertain  to  whom  the  prop- 
erty would  pass.     They  also  insist  that  the 
ejectment  smt  brought  by   defendant  Nellis 
intercepted    the    running    of    the    statute    of 
limitations.     It   is    further    insisted,    on    be- 
half of  defendant  Nellis,  that,  the  mother  of 
defendant   Mrs.    Beck   having   died  prior    to 
the  death  of  Louis,  Jr.,  she  (Mrs.  Beck)  took 
no  interest  in   the  reversionary  estate,   and 
that   the    children    of    Louis    surviving   him, 
and    not   their   issue,   should   take.     On   the 
contrary,   it   is   insisted,   on    behalf   of   Mrs. 
Beck,  that  she  inherited  the  one-third  which 
her    mother    would   have   inherited,    to   take 
effect  upon    the   termination   of  the   life  es- 
tates.    At  the  date  of  the  will,  and  also  at 
the  death  of  Loms  Moran,  Sr.,  his  son  Louis 
had    no    children.     James    L.    was    born    in 
1832.  Caroline  in  1838,  and  Uctavia  in  1842. 
Defendant    Brown    purchased    the    land    in 
1807.     The   following    year    he    took    actual 
possession  of  the  land  under  his  deed.     The 
proofs    established   an    actual,    hostile,    open, 
and   notorious  adverse   possession  for  more 


REMAINDERS. 


J  99 


than  20  years  previous  to  the  bringing  of 
this  suit.  This  is  suflicieut  to  ostaltlish  in 
him  a  good  title,  unless  the  ejectment  suit 
above  mentioned  prevents. 

1.  It  has  been  the  policy  of  the  courts  to 
hold  those  estates  vested  at  the  earliest  pos- 
sible moment.  Chancellor  Kent  states  the 
rule  as  follows:  "No  remainder  will  be  con- 
strued to  be  contingent  which  may,  consist- 
ently with  the  intention,  be  deemed  vested." 
i  Kent,  Comm.  203;  McArthur  v.  Scott,  113 
U.  S.  340.  5  Sup.  Ct.  052.  When  Louis 
Moran,  Sr.,  made  his  will,  his  son  Louis  had 
no  children.  He  had  divided  the  balance  of 
his  property  among  his  other  children  in  an- 
ticipation of  death.  Manifestly,  he  intended 
that  the  property  covered  by  the  will  should 
go  to  the  issue  of  Louis,  Jr.,  if  he  should 
have  any.  The  contingency  he  desired  to 
provide  against  was  the  death  of  his  son 
without  having  had  any  children.  It  is  un- 
reasonable to  say  that  the  testator  intended 
to  cut  off  the  direct  heirs  of  his  son  Louis, 
should  Louis'  children  die  before  he  did,  leav- 
ing is.sue.  There  is  nothing  in  the  provision 
of  this  will  ft-om  which  it  can  be  inferred 
that  he  intended  to  divert  the  estate,  in  any 
event,  from  the  direct  heirs  of  the  children 
of  Louis,  Jr.  Our  own  statute  declares  when 
estates  are  vested,  and  when  contingent. 
How.  St.  §  5.529.  It  reads  as  follows:  "Fu- 
ture estates  are  either  vested  or  contingent; 
they  are  vested  when  there  is  a  person  in 
being  who  would  have  an  immediate  right  to 
the  possession  of  the  lands,  upon  the  ceasing 
of  the  intermediate  or  precedent  estate;  they 
are  contingent  whilst  the  pereon  to  whom,  or 
the  event  upon  which  they  are  limited  to 
take  effect,  remains  uncertain."  Upon  the 
birth  of  James  L.  Moran,  (1S32,)  he,  under 
this  statute,  was  the  person  in  being  en- 
titled to  the  immediate  right  of  possession 
upon  the  ceasing  of  the  life  estates.  He  be- 
came possessed  of  a  vested  estate  in  remain- 
der, subject  to  be  reopened  to  let  in  after- 
born  children.  It  was  twice  thiis  reopened. 
It  is  provided  by  How.  St.  §  5551,  that  "ex- 
pectant estates  are  descendible,  devisable, 
and  alienable  in  the  same  manner  as  estates 
in  possession."  It  is  the  policy  of  the  law 
in  America  not  to  tie  up  estates.  Each  of 
the  children  of  Louis  IVIoran  possessed  an 
alienable  estate,  and  the  grantee  of  either, 
in  the  absence  of  limitations  to  the  contrary, 
would  succeed  to  the  entire  estate  of  the 
grantor,  and  take  it  subject  to  be  reopened  in 


the  same  manner  as  though  the  title  had  re- 
mained in  the  original  devisee.  The  life  es- 
tates, by  purchase,  became  merged  in  the 
vested  estate  in  remainder.  What  interest 
was  there  then  outstaudin.g?  Manifestly, 
none.  Could  any  portion  of  their  title  be 
divested,  and,  if  so,  how?  None  of  it  could 
be  divested  except  by  the  birth  of  another 
child;  but  this  would  not  divert  the  entire 
title  of  either,  but  would  only  take  away  so 
much  of  the  title  of  each  as  would  give  the 
newly-bom  heir  an  equal  interest  with  them. 
In  our  judgment,  these  conclusions  are  war- 
ranted by  the  statute  above  cited,  and  are 
sustained  by  a  long  list  of  authorities.  Doe 
V.  Perryn,  3  Term  R.  4S4;  McArthur  v.  Scott, 
113  U.  S.  340,  5  Sup.  Ct.  G52;  Baker  v.  Mc- 
Lcod's  Estate,  (Wis.)  48  N.  W.  057;  Wilson 
V.  White,  109  N.  Y.  59,  15  N.  E.  749;  Taggart 
V.  MuiTay,  53  N.  Y.  233;  L'Etoiu-neau  v. 
Ilonquenet,  89  Mich.  428,  50  N.  W.  1077; 
Fitzhugh  v.  Townsend,  59  Mich.  427,  27  N. 
W.  501. 

2.  Even  if  we  are  not  correct  in  the  con- 
clusions above  reached,  still  the  complainant 
must  prevail,  for  another  r.'ason.  In  L'Etom-- 
neau  v."  Henquenet,  supra,  it  was  expressly 
held  that  section  5.551,  How.  St.,  applied  to 
contingent  estates,  and  that,  when  alienated, 
if  they  are  defeasible  they  are  subject  to  the 
contingency  by  which  they  may  be  defeated. 
It  follows  that,  when  such  estates  are  held 
by  minors,  they  may  be  sold  by  their  guard- 
ians under  the  direction  of  the  court  of  chan- 
cery; otherwise,  it  would  result  that,  how- 
ever important  and  necessary  it  might  be  to 
sell  such  estates  in  order  to  provide  a  proper 
support  and  education  for  their  wards,  these 
estates  would  be  miavailable  for  that  pur- 
pose. Our  statute  is  largely  copied  from  that 
of  New  York,  and  under  the  life  provisions  it 
has  there  been  held  that  such  estates  could 
be  sold  and  conveyed  under  the  direction  of 
the  court.  Dodge  v.  Stevens,  105  N.  Y.  585, 
12  N.  E.  759;  Jenkins  v.  Fahey,  73  N.  Y. 
355.  The  proceedings  instituted  to  convey 
such  interests  being  regular,  the  guardian's 
deed  issued  in  pursuance  thereof  conveyed 
the  entire  interests  of  the  children  to  the 
grantee.  This  disposition  of  the  case  renders 
it  unnecessary  to  disc\iss  or  determine  the 
questions  of  laches  or  title  by  adverse  posses- 
sion.   Decrees  affirmed,  with  costs. 

McGRATH,  C.  J.,  did  not  sit  The  other 
justices  concurred. 


200 


ESTATES   IN    REAL  PROPERTY. 


L'ETOURNEAU  et  al.  v.  HENQUENET  et  al. 

(50  N.  W.  1077,  89  Mich.  428.) 

Supreme  Court  of  Michigan.     Dec.  23,  1891. 

Appeal  from  circuit  court,  Wayne  county, 
in  chancery;   Cornelius  J.  Reilly,  Judge. 

Suit  in  equity  by  Louis  J.  I'Etourneau  and 
another,  administrators,  against  August  Hen- 
quenet  and  others,  to  remove  a  cloud  from 
the  title  of  real  estate.  Defendants  had  a 
decree,  and  complainants  appeal.     Reversed. 

Eldredge  &  Spier,  for  appellants.  Barbour 
«&  Rexford,  James  J.  Atkinson,  William  F.  At- 
liinson,  S.  S.  Babcock,  T.  M.  Crocker,  and 
Edward  B.  Kane,  for  appellees. 

CHAMPLIN,  C.  J.     The  bill  is  filed  to  re- 
move a  cloud  upon  title,  and  to  obtain  a  con- 
struction of  a  will,  which  is  quite  fully  set 
out  in  the  opinion  of  my  Brother  Morse.    But 
two  questions  are  involved,  and  they  relate  to 
the  construction  to  be  given  to  the  third  and 
eighth   clauses   of  the  will— First.  Does  the 
fee  of  the  real  estate  devised  by  the  third 
clause  vest  in  the  devisees  therein,  named, 
upon  the  death  of  the  testator?     Second.  If 
it  did  vest  under  the  third  clause,  was  it  sub- 
ject to  be  divested  under  the  eighth  clause, 
in  case  of  the  death  of  either  of  the  devisees 
before  the  termination  of  the  precedent  es- 
tate devised  to  the  widow?    The  answer  to 
these  questions  must  depend  upon  the. inten- 
tion of  the  testator,   either  as  expressed  or 
inferred  or  assumed,  in  accordance  with  the 
well-established  canons  of  construction.    The 
fundamental    rule    of    construction    is    that 
the  intention  of  the  testator  must  be  gather- 
ed from  a  consideration  of  the  whole  instru- 
ment together,  giving  to  each  part  or  clause 
due  weight,  as  expressing  some  idea  of  the 
testator  in   the   disposition  of   his   property. 
The  first  and  dominant  idea  of  the  testator, 
as  manifested  in  this  will,  is  that  his  wife, 
Clotilde,   shall  have  a  life-estate  in  posses- 
sion of  all   his  property,   real   :md  personal, 
with  remainder  over  to  his  clrl   ren,  as  there- 
in set  forth.     The  time  of  enjoyment  of  the 
remainder  was  postponed  until  the  death  of 
his  wife.     Section  5523  of  Howell's  Statutes 
enacts  that  "estates,  as  respects  the  time  of 
their  enjoyment,  are  divided  into  'estates  in 
possession'    and    'estates    in    expectancy.' " 
Section  5525  enacts  that  "estates  in  expect- 
ancy  are   divided   into^Fii-st,    estates   com- 
mencing at  a  future  day,   denominated   'fu- 
ture estates;'  and,  second,  'reversions,'  "   Sec- 
tion 5526  defines  a  "future  estate"  as   "an 
estate  limited  to  commence  in  possession  at 
a  future  day,  either  without  the  inten^ention 
of  a  precedent  estate,  or  the  determination, 
by  lapse  of  time  or  otherwise,  of  a  precedent 
estate  created  at  the  same  time."     "When  a 
future  estate  is  dependent  upon  a  precedent 
estate  it  may  be  termed  a  'remainder,'  and 
may    be    created    and    transferred    by    that 
name."     Section  5527.     We  have  here,  then, 
under  the  third  clause  of  this  will,  a  vested 


future  estate,  within  the  very  terms  of  the 
statute,  devised  to  Sarah,  Emily,  and  Eleanor. 
The  question  now  arises,  was  it  the  inten- 
tion of  the  testator  to  make  this  vested  fu- 
ture estate  subject  to  be  defeated  by  the  con- 
tingency mentioned  in  the  eighth  clause?    In 
the  first  place,   it   will  be   noticed   that   the 
habendmn  clause  does  not  devise  the  estate 
absolutely  to  Sarah,  Emily,  and  Eleanor,  and 
their  heirs  and  assigns,  forever,  unqualifiedly, 
but  adds  this  significant  qualification:   '"After 
the  determination  of  the  life-estate  aforesaid." 
He   made  no   such  qualification   in   the   ha- 
bendum to  his  devise  to  Josephine,  nor  in  the 
habendum  to  his  two  sons,  in  the  fifth  clause. 
After  disposing  of  the  remainder  to  certain 
of  his  children  named,   excluding  Margaret, 
the  daughter  of  his  deceased  sou,  Charles,  he 
then  makes  such  remainder  subject  to  the  fol- 
lowing contingency:     "And  whereas,  one  or 
more  of  my   said   children  may   not  survive 
me,  or  my  said  wife,  I  hereby  order,  direct, 
and  devise  the  share  of  such  devisee  or  de- 
visees   in   such   case   to   be   equally   divided 
among  the  remaining  children  herein  named, 
and  to  their  heirs,   share  and   share  alike." 
It  is  claimed  that  this  clause  is  obscure,  and 
open  to  two  constructions.     I  do  not  so  re- 
gard it.     The  testator  was  looking  to  the  fu- 
ture.    The  question  with  him  was,  what  pro- 
visions  should   be   made   with    reference   to 
these  remainders  in  case  either  of  his  chil- 
dren  named   to   whom  he   had   devised   the 
lands  in  remainder  should  die  before  he  did, 
or  before  his  wife,  to  whom  he  had  granted 
I  the  life-estate  in  possession?     If   such   con- 
i  tingency  should  happen,  he  devises  the  share 
'  of  such  devisee  or  devisees  to  the  surviving 
i  children  named,  to  whom  the  share  or  shares 
i  had  been  given,  and  to  their  heirs,  share  and 
I  share  alike.     The  obvious  sense  and  mean- 
:  ing  is  that  one  or  more  of  "my  children  may 
!  die  before  my   will  can   take   effect  by   my 
i  death,"  and  he  provided  for  that  contingency 
i  should  it  happen;   and  it  also  occurred  to  him 
that  one  or  more  might  die  before  they  could 
come  into  possession  by  the  death  of  his  wife, 
and  in  either  case  he  provided  what  should 
be  done  with  the  share  of  such  children  nam- 
ed,—it  should  go  to  the  heirs  of  any  such  do- 
ceased  child,  share  and  share  alike.     He  dis- 
inherited no  child  of  his  children  named  as 
devisees.     He  did  not  intend  that  Margaret 
should,  in  any  event,  share  in  the  "worldly 
effects"  left  by  him.     He  gave  explicit  rea- 
sons for  that,  and  provided  that,  if  she  should 
survive  him,  she  should  be  paid  $10  by  his 
executor  out  of  his  personal  estate.     Can  it 
be  supposed  that,  after  making  this  declara- 
tion of  his  intent  not  to  have  Margaret  share 
in  his  estate,  he,  by  the  next  clause,  admitted 
her  to  a  share  in  the  devises  he  had  given  to 
his  children  in  case  one  or  more  died  before 
he  or  his  wife  died?     It  seems  to  me  that 
such  a  construction  would  be  a  forced  one, 
and  quite  contrary  to  the  intention  expressed. 
Neither    can    I    construe    the    language    to 
mean   that  "my   said   wife  may  not  survive 


REMAINDERS. 


201 


1110."  This  cousl ruction  destroys  the  whole 
scheme  of  the  will.  The  will  can  have  no 
force  unless  there  be  an  intermediate  estate 
in  his  widow,  and  the  legacies  would  all 
lapse.  He  did  not  intend  that  any  of  his 
property  should  be  administered  as  intestate 
property.  He  disposed  of  the  whole,  and  yet, 
to  give  this  clause  the  consti-uction  contended 
for  by  counsel  for  defendant,  causes  these 
shares  to  be  administered  the  same  as  intes- 
tate estates,  and  admits  Margaret  to  share 
in  the  real  estate,'  contrary  to  the  will  of  the 
testator.  The  remainder  to  his  children  was 
subject  to  the  limitation  of  the  eighth  clause. 
The  devise  to  his  children  created  a  vested 
estate,  subject  to  be  defeated  by  the  subse- 
quent contingency  stated  in  the  eighth 
clause.  As  to  the  shares  of  any  child  or 
children  dying  before  the  death  of  Clotilde, 
They  became  a  contingent  remainder  to  the 
surviving  children,  and  the  heirs  of  any  de- 
ceased child,  at  the  termination  of  the  pre- 
cedent estate  of  Clotilde.  As  to  such  the 
precedent  estates  in  remainder  terminated  on 
the  death  of  such  child,  and  a  contingent  re- 
mainder was  created  in  the  surviving  chil- 
<lren  and  the  heirs  of  any  deceased  child. 
Such  contingent  remainder  couiu  not  vest  un- 
til the  death  of  Clotilde,  for  until  then  it 
could  not  be  known  who  would  be  entitled  to 
it  as  heirs  or  survivors.  In  the  language  of 
the  statute,  it  was  contingent  while  the  per- 
son to  whom  it  was  limited  to  take  effect  re- 
mained uncertain. 

By  the  statute,  contingent  estates  are  made 
to  depend  upon  two  conditions, — one  is  while 
the  person  to  whom  the  estate  is  given  re- 
mains uncertain,  and  the  other  when  the 
event  upon  which  such  estates  ai'e  limited  to 
take  effect  remains  uncertain.  In  this  case 
the  event  upon  which  they  are  limited  to 
take  effect  must  be  uncertain,  for  the  reason 
that  one  or  more  of  the  children,  if  the  con- 
tingency happened,  must  die  before  his  wife, 
Clotilde,— events  which  must  happen,  if  at 
all,  within  a  certain  time;  and  it  is  the  event, 
and  not  the  time,  that  controls,  in  determin- 
ing the  question  as  to  whether  the  remainder 
is  contingent  or  vested.  But  they  are  con- 
tingent also  while  the  person  to  whom  they 
are  limited  to  take  effect  remains  uncertain, 
and  that  is  the  contingency  in  this  case;  for 
it  was  not  known  at  the  time  the  testator 
made  his  will,  or  at  the  time  when  he  died, 
that  Charles  and  Eleanor  and  Emily  would 
■each  die  before  his  wife,  Clotilde,  should  die. 
And  by  the  eighth  clause  he  made  the  con- 
ringency  to  happen,  not  upon  the  time  of  dis- 
tribution, but  the  contingency  was  annexed 
to  the  gift  itself,  and  in  such  cases  they  have 
been  regarded  as  contingent,  and  not  vested, 
remainders.  A  vested  estate,  whether  pres- 
ent or  future,  may  be  absolutely  or  defeasibly 
vested.  In  the  latter  case,  it  is  said  to  be 
vested,  subject  to  being  divested  on  the  hap- 
pening of  a  contingency  subsequent.  Chapl. 
Suspen.  §  57;  Manice  v.  Maniee.  4.3  N.  Y.  30o; 
Howell  V.  Mills,  7  Lans.  lOo;    Kelso  v.  Loril- 


lard,  So  X.  Y.  177;  Baker  v.  McLeod's  Ex'rs 
(Wis.)  48  N.  W.  G.j7;  Buruham  v.  Burnham, 
Id.  6G1.  And  where  there  is  a  substituted 
devise,  to  take  effect  in  case  any  of  the  class 
died  during  the  precedent  estaue,  the  re- 
mainder is  then  vested  in  the  existing  mem- 
bers, subject  to  opening  to  let  in  new  mem- 
bers, and  to  be  wholly  diverted  in  favor  of 
tho  substituted  devise  as  to  the  share  of  the 
member  dying.  Chapl.  Suspen.  §  59;  Smith 
V.  Scholtz,  G8  N.  Y.  41;  Baker  v.  Lorillard,  4 
N.  Y.  257;  Du  Bois  v.  Ray,  35  N.  Y.  HJ2.  In 
Carmichael  v.  Carmichael,  43  N.  Y.  34G,  there 
was  a  devise  to  the  testator's  wife  for  life, 
and  from  and  after  her  decease  to  testator's 
children  who  might  then  be  living.  The 
court  held  that  "the  estate  does  not  vest  in 
remainder  until  her  [the  widow's]  death,  and 
then  it  vests  only  in  those  children  who  shall 
be  living  at  the  time  of  her  death."  See,  al- 
so, Hennessey  v.  Fatterson,  85  N.  Y.  91. 

It   remains    to   be    considered    what    effect 
shall  be  given  to  the  mortgages  executed  by 
Emily    upon   the   property   described    in   the 
third  clause  of  the  will.     These  were  execut- 
ed after  Meanor's  death,  and  purported  to  be 
upon  the  undivided  five-twelfths  of  the  real 
estate  described  in  the  third  clause  of  the 
will.     Emily  was  at  that  time  vested  with 
the  undivided  third  interest  in  remainder  in 
the  land.     Timothy  had  died  in  18G1,  leaving 
four  of  the  six  children  at  the  time  the  mort- 
gages   were    executed.     Both    Eleanor    and 
Timothy  died  childless,  without  heirs.    Emily 
evidently  supposed  that  the  one-third  interest 
in  the  remainder  of  Eleanor  was  to  be  di- 
vided among  the  four  surviving  children,  and 
she  would  on  that  basis  be  entitled  to  the 
undivided  one-third  of  one-fourth,  as  she  con- 
sidered, equal  to  one-twelfth,  which,  together 
with    her    four-twelfths,    would    equal    five- 
twelfths;    and  upon  this  share  she  executed 
the  two  mortgages  set  out  in  the  bill.     The 
property  is  said  to  be  worth  $25,000.     Section 
5551,   How.   St.,  provides  that  "expectant  es- 
tates are  descendible,  defeasible,  and  alien- 
able in  the  same  manner  as  estates  in  posses- 
sion."    Contingent  estates,  although  not  vest- 
ed, are  within  the  provisions  of  the  section; 
but  when  alienated,   if  they  are  defeasible, 
they  are  subject  to  the  contingency  by  which 
they  may  be  defeated.     Emily's  estate  was 
subject  to  be  defeated  by  her  death  before 
that  of  her  mother,  by  which  the  estate  then 
vested  in  her  was  cast  upon   her  surviving 
brother  and   sisters,    share  and   share  alike; 
and  of  this  the  purchaser  or  mortgagee  must 
take   notice.     She   could   not  defeat  the  re- 
mainder from  vesting  in  her  brother  and  sis- 
ters upon  the  contingency  of  her  death  be- 
fore she  was  entitled  to  come  into  the  posses- 
sion,   for  the   statute  declares   that   "no   ex- 
pectant estate  can  be  defeated  or  barred  by 
any  alienation  or  other  act  of  the  owner  of 
the  intermediate  or  precedent  estate,  nor  by 
any  destruction  of  such  precedent  estate  by 
disseisin,    forfeiture,    surrender,    merger,    or 
otherwise."' ■   How.   St.  §  ".548.     Neither  can 


202 


ESTATES  IN  REAL  PROFERTY. 


these  expectant  estates  of  her  brother  and 
sisters  be  defeated  by  the  manner  of  dealing 
with  the  estate  by  the  devisees  of  the  tes- 
tator.    I  find  no  evidence  in  the  record  that 
the  devisees  ever  dealt  upon  the  basis  now 
contended  for  by  defendants,  who  divide  the 
estate  into  54  shares,   giving  Emily  21  and 
Margaret  3  fifty-fourths;    nor,  in  my  opinion, 
does  the  will  executed  by  Timothy  lend  any 
aid  to  defendants'  counsel.     That  will  was 
dated  .the  4th  day  of  December,   1861.     He 
died  on  the  next  day.     His  father  was  al- 
ready dead.     The  will  shows  that  he  did  not 
at  that  time  suppose  that  he  had  any  vested 
estate  in  the  remainder  left  to  him  and  his 
brother    Louis.     This    is    the    language    he 
makes  use  of  in  disposing  of  his  estate:    "Sec- 
ond. I  give,  grant,  and  devise  all  and  every 
my  interest,  right,  and  estate,  after  the  pay- 
ment of  said  debts  and  expenses  aforesaid, 
whether  real  or  personal,  and  whether  pres- 
ent or  in  remainder  (being  chiefly  my  inter- 
est and  estate  in  the  personal  property  and 
real  estate  left  by  my  deceased  father,  Fran- 
cis rEtourneau,  by  nis  last  will),  to  my  sisters 
Emily,  Sarah,  and  Eleanor  I'Etourneau,  and 
to    my    sister   Josephine   Paquette,    and    my 
brother  the  Rev.  Louis  J.  I'Etourueau,  equal- 
ly to  be  divided  between  them,   share   and 
sliare  alike;   subject,  nevertheless,  to  and  un- 
der  the    limitation    hereinafter   mentloued— 
First.  In  case  of  the  death  of  my  said  sister 
Mrs.  Josephine  Paquette,  and  of  the  heirs  of 
her  body,  before  said  estate  so  left  by  my  fa- 
ther in  remainder  shall  become  vested,  I  di- 
rect that  her  share  shall  descend,  and  here- 
by devise  her   share   of  said   estate,   to   my 
surviving  brothers  and  sisters  equally,  to  be 
divided  amongst  such  survivors,   share  and 
share  alike.     Second.  On  the  death  of  either 
of  my  said  sisters  or  brothers  t)efore  said  es- 
tate so  as  aforesaid  devised  by  me  shall  be- 
come vested  in  them,  I  direct  and  devise  that 
the  share  of  said  deceased  sister  or  broitlier 
go  to  the  survivor  or  survivoi-s  equally,  to  be 
divided   share    and    share   alike."     It    is    ap- 
parent that  he  did  not  regard  the  remainder 
left  by  his  father  as  yet  having  vested  in 
him,   and  it  will  be  further  noted  that  he 
gives  the  property  in  the  same  manner  and 
to  the  same  persons  mentioned  in  the  eighth 
clause  of  his  father's  will.     He  provides  for 
the   continsency   of   either   of   his  sisters   or 
brother  dying  before  the  estate  given  by  him- 
self becomes  vested  in  them,  and  directs  that 
such  share  shall  be  equally  divided  between 
the  survivors,   share  and   share   alike;    thus 
treating  his  estate  as  a  contingent  remainder, 
and  not  to  vest  in  his  devisees  until  the  death 
of  his  mother.     Emily  made  her  will  May  2, 
ISGS,  she  only  assuming  to  devise  "such  prop- 
erty,   real   and  personal,   as  I  have  or  may 
hereafter  during  my  life  inherit  at  any  time." 
This  will  throws  no  light  upon  the  construc- 
tion to  be  placed  upon  that  executed  by  her 
father.     Moreover,  I  consider  it  would  be  an 
unsafe  doctrine  to  hold  that  the  intention  of 
a  testator   should   be   ascertained   fx"om   the 


claims  made  by  devisees  who  are  anxious  to 
obtain  the  property  which  they  think  they 
are  entitled  to  under  their  construction  of 
the  will.  In  my  opinion,  the  mortgagees 
have  no  claim  upon  Emily's  share,  which  by 
the  eighth  clause  passed  to  the  surviving 
brother  and  sisters.  Whether  the  eighth 
clause  constituted  a  contingent  remainder  or 
not  in  such  as  should  take  under  it,  it  can 
make  no  difference  in  the  result  in  this  case, 
because  Emily  having  died  without  heirs,  be- 
fore the  death  of  her  motfier,  her  interests 
and  estate,  whether  vested  or  contingent, 
were  defeated,  and  passed  to  the  surviving 
children,  and  the  heirs  of  any  deceased  chil- 
dren, who  upon  Clotilde's  death  became  seis- 
ed in  fee  of  the  remainder,  and  entitled  to 
the  immediate  possession  of  the  lands  de- 
vised. It  is  my  opinion  that  the  decree  of 
the  circuit  court  is  erroneous,  and  should  be 
reversed,  and  a  decree  entered  herein  in  ac- 
cordance with  these  views. 

McGRATH  and  LONG,  JJ.,  concurred. 

MORSE,  J.  (dissenting).  Francis  I'Etour- 
neau died  August  2(5,  ISUO,  leaving  a  last  will 
and  testament.  After  providing  that  his  debts, 
funeral  and  other  proper  expenses  be  paid  out 
of  his  personal  property,  he  devised  his  estate 
as  follows:  "Second.  I  give,  grant,  devise,  and 
bequeath  unto  my  beloved  wife,  Olotilde 
I'Etourneau,  as  a  testimony  of  my  great  love 
for  and  confidence  in  her,  for  and  during  her 
natural  life,  all  and  every  my  real  estate,  which 
is  hereinafter  more  particularly  described,  in 
the  devises  following;  and  all  that  I  may  be 
seised  of  or  possess  at  my  decease,  and  all  and 
eveiy  my  personal  estate,  whether  in  money, 
goods,  chattels,  bonds,  obligations,  or  choses  in 
action;  to  have  and  to  hold  the  said  real  estate, 
and  its  appurtenances  to  her,  the  said  Clotilde 
I'Etourneau,  for  and  during  the  full  term  of 
her  natural  lire,  with  I'emainder  over  as  here- 
inafter set  forth;  the  said  personal  property  to 
be  under  her  absolute  control,  to  sell  and  dis- 
pose of  as  she  may  deem  fit  or  desire;  and  I 
desire  and  request  my  beloved  wife,  so  far  as 
may  be  in  her  power,  to  keep  our  children  and 
family  together  as  heretofore.  Third.  After 
the  determination  of  the  aforesaid  life-estate  of 
my  wife,  Clotilde,  I  give,  grant,  and  devise 
unto  my  daughters,  Emily,  Sarah,  and  Eleanor 
I'Etourneau,  all  that  certain  tract  and  parcel  of 
land  situate,  lying,  and  being  in  the  city  of  De- 
troit, in  the  state  of  Michigan,  known  as  the 
'Western  Hotel  Property,'  and  described  as  fol- 
lows, to-wit:  Lots  t\ventj--one  and  twenty-two. 
in  block  five,  fronting  on  Woodbridge  street,  on 
the  Cass  front;  reference  being  had  to  the  re- 
corded plat  thereof,  surveyed  by  John  Mullet, 
together  with  all  and  singular  the  heredita- 
ments and  appurtenances,  rents,  issues,  and 
profits  thereof;  to  have  and  to  hold  the  same 
to  tlie  said  Sarah,  Emily,  and  Eleanor,  tlieir 
heirs  and  assigns,  forever,  after  the  determina- 
tion of  the  life-estate  aforesaid.  Fourth.  After 
the  determination  of  the  life-estate  of  my  wife,. 


REMAIN  L)E  lis. 


203 


Clotilde,  as  aforesaid,  I  give,  grant,  and  de- 
vise unto  my  married  daughter,  Josephine  Pa- 
quette,  all  that  certain  piece  and  parcel  of  land 
situate,  lying,  and  being  in  the  county  of  Ma- 
comb and  state  of  Michigan,  lying  on  the  river 
Clinton,  and  bounded  as  follows:  In  front  by 
the  said  river;  on  the  east  by  lands  formerly 
belonging  to  Etienne  Dulac  and  Joseph  Cam- 
pau;  on  the  soutli-west  by  lands  foi-merly  be- 
longing to  Batist  Peltier;  and  on  the  rear  by 
lauds  formerly  belonging  to  Batist  Thomas, 
Jr.;  and  containing  seventy-two  and  a  half 
acres,  more  or  less,— the  same  being  a  part  of 
the  tract  granted  by  the  United  States  by  pat- 
ent dated  7th  October,  A.  D.  1811,  to  Louis 
Petet,  and  by  said  Louis  Petet  and  wife  con- 
veyed to  me;  together  with  all  and  singular 
the  herediraments  and  appurtenances  thereun- 
to belonging;  to  have  and  to  hold  the  same 
to  the  said  Josephine  Paquette,  and  to  the 
heirs  of  ner  body  gotten,  with  remainder  over 
to  her  or  their  heirs.  Fifth.  After  the  deter- 
mination of  the  aforesaid  life -estate  devised  to 
my  wife,  Clotilde,  I  give,  grant,  and  devise 
unto  my  sons,  the  Reverend  Louis  Job  I'Etour- 
neau  and  Timothy  E.  I'Etourneau,  all  and 
every  those  tracts  and  parcels  of  land  herein- 
after described,  viz.:  My  present  homestead, 
situate  and  being  in  the  vilLige  of  Mt.  Clemens, 
in  Macomb  county  and  state  of  Micliigan,  being 
lots  in  James  Williams'  addition  to  said  vil- 
lage, and  numbered,  according  to  a  survey  and 
plat  thereof  by  J.  Wesalowski,  as  Nos.  three, 
four,  five,  six,  seven,  eight,  nine,  ten,  eleven, 
twelve,  thirteen,  fourteen,  fifteen,  sixteen,  sev- 
enteen, eighteen,  nineteen,  twenty,  twenty-one, 
twenty-tw^o,  twentj^-three,  and  tw^enty-four. 
being  the  same  conveyed  by  James  Williams 
and  wife  to  me;  and  also  those  lots  in  the  city 
of  Detroit  (formerly  in  the  town  of  Ham- 
tramck,  in  the  county  of  Wayne,  Michigan) 
known  and  described  as  lots  numbers  thirteen 
and  fourteen,  in  block  number  seven,  in  the 
subdivision  of  the  "Witherell  Farm,'  so  called, 
or  private  claim  number  ninety,  according  to 
the  survey  and  plat  thereof  made  by  A.  E. 
Hattion,  and  duly  recorded;  together  with  all 
and  singular  the  hereditaments  *nd  appurte- 
nances thereunto  belonging;  to  have  and  to 
hold  the  same  unto  the  said  Rev.  Louis  J. 
I'Etourneau  and  the  said  Timothy  E.  I'Etour- 
neau, their  heirs  and  assigns,  forever.  Sixth. 
After  the  death  of  my  beloved  wife,  I  give, 
grant,  and  bequeath  unto  each  and  every  of 
ray  children  above  mentioned,  and  to  their 
heirs  and  assigns,  all  my  personal  property  and 
estate,  if  any  there  be  then  remaining,  equally 
to  be  divided  amongst  them,  share  and  share 
alike;  and  for  the  amicable  arrangement  of 
the  said  division,  without  expense,  I  give  and 
grant  unto  my  surviving  executor,  or  such  per- 
son as  may  be  properly  appointed  to  complete 
the  trusts  of  this  will,  full  power  and  autliority 
to  sell  and  dispose  of  the  same  for  the  best 
price,  and  to  divide  the  proceeds  amongst  my 
said  children,  or  their  heirs,  equally  as  afore- 
said, unless  they  shall  agree  amongst  them- 
selves to  such  division.    Seventh.  I  do  here  re- 


member my  granddaughter,  Margaret,  the  child 
of  my  late  son  Charles  R.  I'Etourneau,  and  be- 
lieving that  in  his  life-time  I  had  given  to  her 
father  of  whom  she  is  sole  heir,  his  full  share 
of  my  worldly  effects,  I  hereby  bequeath  to  the 
said  Margaret,  if  she  shall  survive  me,  the  sum 
of  ten  dollars,  to  be  paid  to  her  by  my  execu- 
tors out  of  my  personal  estate.  Eighth.  And 
whereas,  one  of  my  .said  children  may  not  sur- 
vive me  or  my  said  wife,  I  hereby  order,  di- 
rect, and  devise  the  share  of  such  devisee  or 
devisees  in  such  case  to  be  equally  divided 
amongst  tlie  remaining  children  herein  named, 
and  to  their  heirs,  share  and  share  alike."  His 
wife  and  his  son  Louis  were  made  executors, 
with  full  power  to  the  survivor  of  them. 

There  survived  the  said  Francis  1  Etourneau, 
his  wife,  Clotilde  I'Etcurneau,  and  the  follow- 
ing children  named  in  said  will:  Louis  J. 
rEtourneau,  Timotliy  I'Etourneau,  Emily, 
Eleanor,  and  Sarah  I'Etourneau,  and  Josephine 
Paquette.  On  the  oth  of  Februaiy,  ISGl,  Tim- 
othy E.,  one  of  the  sons  and  devisees  named, 
died  at  Mt.  Clemens,  testate.  On  the  13th  day 
of  May,  18G2,  Eleanor,  one  of  the  daughters 
and  devisees  named,  died  at  Mt.  Clemens,  in- 
testate, unmarried,  and  without  issue.  The 
daughter  Emily  married  the  defendant  August 
Henquenet,  and  died  testate,  at  Mt.  Clemens, 
on  the  loth  day  of  October,  18S7.  John  Ott) 
was  appointed  administrator  of  her  estate  with 
the  will  annexed.  At  the  death  of  Mrs.  Clo- 
tilde I'Etourneau,  on  the  29th  day  of  August, 
18SS,  there  survived  of  the  children  and  devi- 
sees named  in  the  will  of  Francis  I'Etourneau, 
deceased,  the  following:  .  Louis  J.  I'Etounieau 
and  Sarah  I'Etourneau  and  Mrs.  Josephine  Pa- 
quette. On  the  16th  day  of  October,  A.  D. 
1SS8,  Sarah  I'Etourneau  was  adjudged  incom- 
petent by  the  probate  court  of  Macomb  county, 
and  Louis  J.  I'Etourneau  was  appointed  het 
guardian,  and  qualified  as  such.  The  com- 
plainants Louis  J.  I'Etourneau,  and  Sarah 
I'Etourneau,  by  her  guardian,  filed  this  bill  of 
complaint  in  the  circuit  court  for  the  county  of 
Macomb,  in  chancery,  December  6,  18SS,  pray- 
ing that  the  court  miglit  determine  their  inter- 
ests in  the  property'  mentioned  in  the  third 
clause  of  the  will,  luiown  as  the  "Western  Ho- 
tel Property."  and  describe<l  as  lots  numbei-s 
21  and  22,  in  block  5,  facing  on  Woodbridge 
street,  on  the  Cass  front,  reference  being  had 
to  the  recorded  plat  thereof,  surveyed  by  John 
Mullet.  August  Henquenet  is  made  a  defend- 
ant because  he  claims  a  life-estate  in  five- 
twelfths  of  the  premises  under  the  will  of  his 
wife,  Emily.  Francis  J.  De  Bronx  is  the  holder 
of  a  mortgage  upon  five-twelfths  of  the  prop- 
erty, executed  Feoruary  3,  1872,  by  Emily 
Henquenet  and  her  husband  to  William  C. 
Groesbeck  for  .?2,000,  and  assigned  by  him  to 
Charles  Ryckeart  January  4,  1881.  and  by 
Ryckeart  to  De  Bronx,  July  16,  1888.  Jan- 
uary 15,  1885,  Emily  Henquenet  executed  an- 
other mortgage  on  five-twelfths  of  the  same 
premises  for  .$5,000  to  Pe  Bronx.  This  was 
assigned  July  8,  1885,  to  Joseph  F.  De  Poorter, 
who   subsequently    died    intestate.     Defendant 


204 


ESTATES   IN   REAL   PROPERTY. 


Duchaineau  is  executor  of  his  will,  and  the 
Congregation  des  Freres  de  la  Charite,  a  for- 
eign corporation,  claims  under  the  will  of  De 
Poorter  an  interest  in  this  mortgage.  At  the 
time  of  the  filing  of  this  bill  the  mortgage  had 
been  foreclosed  by  an  advertisement  and  bid  in 
by  De  Broux,  Josephine  Paquette,  a  daughter 
of  Francis  I'Etourneau,  after  the  death  of 
Eleanor,  claimed  a  one-twelfth  interest  in  the 
property,  and  conveyed  the  same,  September 
2,  1SS4,  before  the  death  of  her  mother,  to  one 
Morton.  By  mesne  conveyances  it  passed  from 
Morton  to  one  Horace  Brewer.  Upon  Brewer's 
death  it  descended  to  Charles  Brewer,  who  died 
leaving  two  minor  children,  Florence  and  Hor- 
ace Brewer,  who,  with  their  father's  adminis- 
trator, are  made  defendants. 

The  complainants  claim  that,  under  the 
eighth  clause  of  the  will,  Eleanor  and  Emily, 
who  died  before  their  mother,  never  had  an,v 
vested  interest  in  this  proi>erty,  and  that  one- 
third  of  it  at  the  mother's  decease  became  vest- 
ed in  Sarah,  and  the  other  two-thirds  in  equal 
shares  in  Louis,  Sarah,  and  Josephine,  dividing 
the  title  as  follows:  Five-ninths  in  Sarah,  and 
two-ninths  each  in  Louis  and  JosepTiine.  Jo- 
sephine seems  now  to  be  interested  in  this  con- 
struction of  the  will,  although,  in  the  disixtsi- 
tion  of  the  property  willed  to  her,  she  has  here- 
tofore, as  have  all  the  family,  acted  upon  the 
supposition  that  the  contention  of  the  defend- 
ants was  the  correct  one  in  the  inteipretation 
of  her  father's  will.  The  defendants'  conten- 
tion is  that,  upon  the  death  of  Francis  I'Etour- 
neau, Emily,  Sarah,  and  Eleanor,  who  were  all 
then  living,  were  vested  each  with  an  equal 
undivided  share,— three-ninths,— subject  only  to 
the  life-estate  of  their  mother.  Eleanor  dying 
without  issue,  and  intestate,  her  three-ninths 
of  the  premises  descended  in  equal  shares  to 
her  mother,  Louis,  Sarah,  Emily,  and  Jose- 
phine, and  tlie  granddaughter  Margaret,  leav- 
ing the  title  distributed  as  follows:  Emily  and 
Sarah  each  21-51;  and  Josephine,  Louis,  and 
Margaret  each  3-54,  subject  to  the  life-estate 
of  the  mother;  and  the  mother  .3-54  and  hei 
life-estate  in  the  whole.  It  was  imder  this  idea 
of  the  condition  of  the  title  that  Emily  exe- 
cuted the  two  mortgages,  and  Josephine  defi- 
ed to  Brewer.  Timothy  died  less  than  six 
anonths  after  the  decease  of  his  father.  He 
made  a  will,  Februaiy  4,  1861,  two  days  be- 
fore his  death,  by  which  he  devised  all  his 
property, .  whether  present  or  in  remainder, 
("being  chiefly  my  interest  and  estate  in  the 
personal  property  and  real  estate  left  by  my 
deceased  father,  Francis  I'EtO'Umeau,  by  his 
last  will,")  to  his  sisters  Emily,  Sarah,  Eleanor, 
and  Josephine,  and  his  brother,  liouis,  share 
and  share  alike;  providing  that,  in  case  of  the 
death  of  his  sister  Josephine,  and  of  the  heirs 
of  her  body,  "before  said  estate  so  left  by  my 
father  in  remainder  shall  be  vested,"  her  share 
shall  descend  in  equal  parts  to  the  surviving 
sisters  and  brother;  and  that,  "in  case  of  the 
death  of  either  of  my  said  sisters  or  brother  be- 
fore said  estate  so  as  aforesaid  devised  by  me 
shall  become  vested  in  them,"  the  share  of  said 


deceased  sister  or  brotlier  shall  descend  equally 
to  the  survivor  or  survivors.  The  property 
willed  to  Timothy  by  his  father  was  devised  in 
equal  shares  to  Louis  and  Timothy.  The  home- 
stead has  never  been  conveyed,  but  the  Detroit 
or  Hamtramck  property  was  sold.  The  first 
deed  of  lot  14  was  a  warranty  deed,  signed  by 
Louis  alone.  Afterwards  it  would  appear  that 
some  of  the  family,  if  not  all  of  them,  joined 
with  him  in  the  conveyance,  and  mortgages 
were  taken  back  on  the  land.  The  mortgage 
on  lot  13  ran  to  Louis  and  his  mother,  and  on 
14  to  Louis,  Sarah,  Emily,  and  their  mother. 
Louis  says  he  received  $750  of  this  property, 
which  was  a  part  of  the  money  received  for  the 
lots.  These  lots  were  sold  between  186i>  and 
1873.  The  will  of  Timothy  was  proved  and 
admitted  to  probate.  It  does  not  appear  that 
he  had  any  other  property  than  that  willed  to 
him  by  his  father.  If  the  contention  of  the 
complainants  is  correct,  he  has  nothing  to  will 
away.  When  Timothy  died,  Sarah,  Eleanor, 
Louis,  Josephine,  and  Emily  were  living;  and 
there  is  evidence  tending  to  show  that  Louis 
recognized  the  fact  that  Emily  had  an  mter- 
est  in  the  homestead,  as  devisee  of  Timothy, 
and  proposed  to  trade  his  one-twelfth  interest 
in  the  Woodbridge-Street  property,  as  heir  of 
Eleanor,  for  Emily's  interest  in  the  homestead. 
Louis  testified  that,  after  the  death  of  Timothy, 
the  Hamtramck  property  was  treated  as  the 
property  of  the  family.  Josephine  sold  the 
farm  willed  to  her  by  her  father,  August  10, 
188G.  None  of  the  family,  except  her  mother, 
joined  in  the  deed,  and  she  had  the  whole  pro- 
ceeds of  such  sale;  her  children  also  conveyed 
their  interests.  Immediately  after  the  death  of 
her  father,  she  took  possession  of  this  farm, 
and  it  was  always  ti'eated  as  her  property,  sub- 
ject only  to  the  life-estate  of  her  mother,  and 
the  remainder  over  to  her  children,  and  she 
and  her  husband  made  valuable  improvements 
upon  it. 

Emily  in  her  life-time,  being  the  eldest  mem- 
ber of  the  family  at  home,  assisted  her  moth- 
er in  the  management  of  the  property,  and  it 
seems  to  have  been  her  idea,  as  well  as  her 
mother's,  that  the  several  devises  in  her  fath- 
er's will  vested  upon  his  death.  Acting  upon 
this  idea,  she  executed  the  two  mortgages 
upon  her  portion.  She  also  made  a  will,  dat- 
ed May  2,  1868,  in  which  she  devised  all  her 
estate,  which  she  had  inherited  or  might  in- 
herit, to  her  husband  during  his  life,  witli  re- 
mainder over  to  her  brother  Louis  and  her 
sisters  Sarah  and  Josephine,  and  their  heirs, 
and  all  her  property  not  acquired  by  inherit- 
ance, absolutely  to  her  husband  and  his  heirs. 
She  named  her  brother  Louis  as  her  executor. 
Under  the  same  impression  Josephine  dispos- 
ed of  her  property,  and  deeded  an  interest  in 
the  Woodbridge-Street  property  to  Morton, 
which  interest  is  now  held  by  the  minor  chil- 
dren of  Charles  Brewer.  It  is  also  evident 
that  Louis  had  the  same  understanding  of 
the  will,  and  acted  upon  it.  He  was  a  priest 
in  orders  at  Notre  Dame,  Ind.,  and  says  that 
he  took  but  little  interest  or  concern  in  the 


REMAINDERS. 


205 


estate,  acting  entirely  upon  tlie  suggestions  of 
Emily   and    liis    mother,    and    executing    the 
deeds  and  other  papers  they  sent  him,  and 
taking  what  money  they  chose  to  send  him, 
without  question.     But  he  knew  of  the  mort- 
gages executed  by  Emily,  and  made  no  pro- 
test against  them.     February  20,  1SS8,  before 
his  sister's  death,  but  after  the  death  of  Em- 
ily, he  wrote  a  letter  to  De  Broux,  who  is  also 
a  Catholic  priest,  in  answer  to  one  received 
from  him,  claiming  that  Emily's  husband  had 
used   all  the   money   received  from  the   loan 
evidenced  by  the  .?5,000  mortgage.     It  would' 
appear   from   this  letter  that   De  Broux   was 
seeking  a  payment  of  the  mortgage  from  the 
estate  of  Emily,  Louis  being  named  executor 
in  her  will,  or  from  Louis  and  the  mother. 
Louis  in  his  letter  says  that  he  had  delayed 
writing  in  order  that  he  might  get  the  advice 
of  a  "learned  professor"  at  Notre  Dame,  and 
that    such    advice    coincided    with    his    own 
views.     He   further   writes  that   he  did  not 
know  until  she  died  that  he  had  been  named 
in  his  sister's  will  as  executor,  and  that  he 
had  turned  over  the  trust  to  Mr.  Otto,  at  Mt. 
Clemens,   being  sick   at  the  time  his   sister 
died.     He    concludes    his   letter    as    follows: 
"As  you  can  well  understand,  neither  I  nor 
any   member   of  our   family   is    responsible; 
nor   can   I   in  justice,   nor  in  conscience,   be 
bound  to  pay  one  cent,  either  of  interest  or 
capital,  of  any  moneys  which  Mrs.  Henquenet 
borrowed,  since  Mr.  H.  has  received  it  all  for 
his  own  benefit.     I  do  not  know  how  the  mort- 
gage is  made.     I  would  indeed  be  sorry  that 
any    one    should   lose   anything   through    my 
fault,  and  I  do  not  see  any  other  method  to 
get  back  the  money  you  lent,  except  by  fore- 
closure on  the  property  in  Detroit.     Of  course, 
only  Emily's  share  in  that  property  could  be 
attacked,  and,  if  there  was  not  enough  there, 
she  had  a  half  share  in  a  lot  and  house  in 
Mt.  Clemens.     Mr.   Henquenet  has  acted  in 
all  this   in   a   most   unjust    manner  towards 
our  family;    for  the  Detroit  property  was  de- 
vised to  him  only  for  his  life-time,  and  then 
it  was  to  revert  to  the  family.     How  can  he, 
as  a  Catholic,  be  safe  in  conscience?     As  long 
as  my  mother  lives,  she  has  a  right  to  all  the 
revenues  of  the   Detroit   property.     We   had 
not  the  means  to  take  up  the  mortgage,  and, 
if  we  had,  it  would  be  folly  for  us  to  do  so, 
as  Mr.  H.  could  play  the  gentleman  at  our 
expense  as  long  as  he  lives.     Mr.  H.  is  obliged 
to  pay  the  interest  on  the  money  he  got,  and, 
if  he  refuses,  what  remains  to  be  done  is,  I 
presume,  to  foreclose  on  that  property  that 
was    mortgaged.     If    Mr.    H.   could    succeed, 
he  would  gladly  grab  every  cent  of  the  family. 
If  he  has  $.30,000  worth  of  property  in  Hope, 
he    is   indebted    to    our    family    for    it.     But 
he  is  not  thankful  for  this.     He  pretends  that 
we  liave  done  nothing  for  him.     May  God  for- 
give him.     I  presume  it  would  be  advisable 
to  see  Mr.  Otto,  whom  I  appointed  to  i-eplace 
me  in  regard  to  my  sister's  affairs.     I    will 
send  him  a  copy  of  your  letter,  and  will  tell 
him    of    my    writing   to   you.     I    hope.    Rev. 


Father,  that  the  parties  who  hold  the  mort- 
gage will  not  suffer  any  loss,  nor  you  either. 
I  understand  tliat  Fr.  Ryckaert  has  a  mort- 
gage on  that  property  for  .$2,000.  Wishing 
you  all  blessings,  I  remain  your  sincere  friend 
in  the  Sacred  Heart,  L.  J.  L'Etourneau,  C. 
I.  G." 

This  letter  shows  conclusively  that  he  then 
understood  the  will  as  Emily  understood  it, 
although  he  attempted  to  convey  the  impres- 
sion in  his  testimony  that  he  had  no  thought 
or  understanding  about  it  until  he  took  legal 
advice    some     time    afterwards,     when    he 
thought  Mr.   Henquenet  was  becoming   "ag- 
gressive."    It  therefore  conclusively  appears 
that  all  the  members  of  this  family,  except 
Sarah,  who  was  incompetent  and  unable  to 
act  for  herself,  for  28  years  since  the  death 
of  their  father,  have  understood  and  inter- 
preted his  will  as  the  defendants  now  con- 
tend it  should  be  construed,  and  have  uni- 
formly acted  upon  such  understanding  and  in- 
terpretation until  within  a  short  time  before 
the  filing  of  this  bill.     In  equity  the  complain- 
ants Louis  and  Josephine  ought  to  be  estop- 
ped from  now  placing  a  different  construction 
upon   this  will,— one  that   will  declare   these 
mortgages  void  and  of  no  effect,  and  leave 
the   innocent   holders   of   them   without   any 
remedy  or  redress,  except  against  the  estate 
of  Emily,  which  amounts  to  but  little,  if  any- 
thing, outside  of  the  property  she  supposed 
she  inherited   from   her   father.     If   the   lan- 
guage of  the  will  was  so  clear  and  certain  that 
the    construction    claimed    by    complainants 
must  prevail,  we  should  not  hesitate,  under 
the  rule  that  he  who  seeks  equity  must  do 
equity,  to  leave  the  matter  where  these  adult 
heirs,  as  far  as  they  are  concerned,  have  left 
it  by   this    family   arrangement    and   under- 
standing   of    over   a    quarter   of    a    century. 
Since  the  filing  of  this  bill,  the  incompetent, 
Sarah,  has  died,  and  the  bulk  of  her  interest 
in  her  fatlier's  estate  will  descend  to  Louis 
and  Josephine.     They,  with  the  granddaugh- 
ter Margaret,  are  the  sole  heirs  to  the  prop- 
erty.    But  we  are  satisfied  that  the  proper 
construction  of  this  will  is  as  the  mother  and 
children   construed  it  in  the  first  place.     It 
will  be  noticed  that  the  third  clause  of  the  will 
devises  this  property:    "To  have  and  to  hold 
the  same  to  the  said  Sarah,  Emily,  and  Elea- 
nor, their  heirs  and  assigns  forever,  after  the 
determination    of  the   life-estate   aforesaid." 
If  it  were  not  for  the  eiglith  clause  of  the 
will,  it   would   not  be  doubted  that,    on   the 
death  of  their  father,  the  fee  of  this  property 
would  have  vested  in  these  three  girls,  subject 
only  to  the  life-estate  of  their  mother.     The 
eighth  clause  reads  as  follows:    "And  where- 
as, one  or  more  of  my  said  children  may  not 
sur\ive  me  or  mi/  said  wife,  I  hereby  order, 
direct,   and  devise  the  share  of  such  devisee 
or  devisees  in  such  case  to  be  equally  divided 
amongst  the  remaining  children  herein  named, 
and    to   their  heirs,  share  and   share   alike." 
The  italics  are  ours. 
The  intent  of  tliis  clause  as  it  stands,  and 


206 


ESTATES  IN   REAL   PROPERTY. 


connected  with  the  other  clauses  of  the  will, 
is  not  clear  and  certain.  The  complainants' 
counsel,  to  make  it  harmonize  with  his  views, 
claims  that  the  word  "or"  in  the  italicized 
words  must  be  read  "and,"  so  that  it  will 
read,  "may  not  survive  me  and  my  said  wife." 
The  counsel  says:  "We  submit  that  the  word 
'or'  in  the  eighth  clause,  where  it  occurs  in 
the  expression,  'survive  me  or  my  said  wife,' 
should  be  read  'and.'  The  testator  had  in  the 
third  clause,  by  very  forcible  and  clear  lan- 
guage, attempted  to  postpone  any  effect  of  his 
gift  to  the  three  daughters  until  the  death 
of  his  wife.  He  now  in  the  eighth  clause  is 
providing  for  the  distribution  to  be  made, 
when  the  gift  is  to  operate,  and  contemplates 
the  contingency  of  the  death  of  one  or  more 
before  distribution.  It  is  impossible  to  con- 
ceive why  the  wife  is  mentioned  at  all  in  the 
eighth  clause  on  any  other  hypothesis.  'Or' 
will  be  read  'and'  whenever  such  reading  is 
necessai-y  to  give  effect  to.  the  evident  intent 
of  the  testator."  It  is  possible  in  my  mind  to 
conceive  why  the  wife  is  mentioned  upon 
another  hypothesis,  and  I  think  with  Mr.  At- 
kinson, as  stated  in  his  brief,  that  the  sentence 
was  intended  by  the  testator  as  follows: 
"And  whereas  one  or  more  of  my  said  chil- 
dren may  not  survive  me,  or  my  said  wife 
may  not  survive  me,  I  hereby  order,"  etc. 
That,  in  the  contemplation  that  some  of  the 
childi-en  might  die  before  he  did,  the  thought 
also  occurred  that  his  wife  might  not  survive 
him,  and  that  the  awkwardness  or  incomplete- 
ness of  the  expression  is  that  of  the  scrivener, 
and  not  of  the  testator's  intention.  • 

In  connection  with  this  matter,  it  is  notice- 
able that  the  same  person  who  drafted  the 
will  also  drew  the  will  of  Timothy,  who  had 
nothing  to  devise  in  his  father's  estate,  if  the 
construction  of  his  father's  will  be  as  con- 
tended by  the  complainants.  We  agree  with 
the  complainants'  solicitor  that  "the  com- 
manding and  controlling  rule  of  interpretation 
requires  that  the  intention  of  the  testator  as- 
certained from  the  will,  looking  to  the  whole 
of  it,  and  reading  it  in  the  light  of  the  sur- 
roundings of  the  testator  at  its  date,  is  to  be 
given  full  effect,  if  lawful.  Is  it  to  be  sup- 
posed that  the  testator  intended  to  disinherit 
the  children  of  his  children,  if  any  child  of  his, 
hving  at  his  death,  should  die  before  the  wife 
and  mother  did?  He  is  very  particular  to 
state  why  he  wills  no  more  to  his  grandchild 
Margaret,  daughter  of  a  dead  son,  and  gives 
her  $10,  if  she  survives  him.  Josephine  was 
married  and  had  two  children.  Did  he  intend 
to  disinherit  them,  if  their  mother  died  before 
his  wife  did?  On  the  contrary,  he  evidently 
intended  by  the  fourth  clause  of  his  will  that 
the  property  devised  to  Josephine  should  go 
at  her  death  to  the  heirs  of  her  body.  It 
will  be  observed  that  the  grants  to  the  other 
children  are  to  them,  "their  heirs  and  as- 
signs;" while  in  Josephine's  case  the  word 
"assigns"  is  omitted,  clearly  showing  an  in- 
tention that  Josepliine  could  not  dispose  of  the 
farm  without  her  children's  consent,  and  un- 


der this  idea  they  joined  with  her  in  convey- 
ing it  when  she  sold  it.  Yet  if  Josephine  had 
died  before  her  mother,  under  the  complain- 
ants' theory  her  children  would  have  been 
disinherited.  It  Is  the  policy  of  our  laws  not 
to  disinherit  heirs,  unless  it  clearly  and  dis- 
tinctly appears  that  such  was  the  puii3ose  of 
the  testator.  The  law  also  favors  vested  es- 
tates, and  a  remainder  is  not  to  be  construed 
as  contingent  when  it  can  consistently  be 
construed  to  be  vested.  A  will  speaks  from 
the  testator's  death,  and  legacies  then  vest, 
unless  a  contrary  intent  is  clearly  indicated 
in  the  will.  Eberts  v.  Eberts,  42  Mich.  40-1, 
4  N.  W.  172;  Rood  v.  Hovey,  50  Mich.  395, 
15  N.  W.  525;  Toms  v.  Williams,  41  Mich. 
552,  2  N.  W.  814;  Rivenett  v.  Bourquin,  53 
Mich.  10,  18  N.  W.  537;  Association  v.  Mont- 
gomery, 70  Mich.  587,  38  N.  W.  588;  Porter 
V,  Porter,  50  Mich.  456,  15  N.  W.  550;  Mc- 
Carty  v.  Fish  (Mich.)  49  N.  W.  513.  The  case 
of  Rood  V.  Hovey,  supra,  is  veiy  closely  in 
point  with  the  case  here.  The  will  devised 
a  life-estate  to  his  widow,  remainder  to  his 
children  "now  living,  or  who  may  be  at  the 
time  of  her  decease  or  marriage."  The  word 
"or"  might  be  read  "and"  as  well  in  this  in- 
strument as  in  the  one  before  us;  in  which 
case  it  would  appear  as  clearly  as  here  that 
the  legacies  were  not  intended  to  vest,  and 
that  the  children  of  a  child,  dying  between  the 
death  of  the  testator  and  the  decease  of  his 
widow,  would  be  disinherited.  All  the  chil- 
dren survived  the  testator,  but  two  died  be- 
fore the  widow,  and  one  left  surviving  him  -a 
widow  and  children.  Mr.  Justice  Campbell, 
speaking  for  the  court,  after  referring  to  the 
general  rules  of  constniction,  which  have  been 
heretofore  pointed  out  in  the  present  opinion, 
says:  "We  do  not  think  it  proper  to  go  into 
any  extended  discussion  of  the  testamentary 
law,  because  we  have  not  been  able  to  dis- 
cover the  least  ambiguity  in  the  language  of 
this  will.  It  says  as  plainly  as  words  can 
make  it  that  all  of  his  children  then  living 
shall  share  in  his  estate  not  otherwise  dis- 
posed of;  that  is,  in  all  but  the  widow's  inter- 
est. If  there  had  been  no  other  words,  no 
one  could  dispute  that  their  interest  was  vest- 
ed. The  remaining  words,  'or  who  may  be  at 
the  time  of  her  decease,'  might  very  well  ap- 
ply to  posthumous  children,  but  the  form  of 
the  expression  is  not  such  as  to  indicate  an  in- 
tent to  qualify  the  former  language  as  to  hv- 
ing children.  There  is  nothing  in  the  rest  of 
the  will  favoring  the  idea  that  he  had  any 
purpose  of  disinheriting  any  of  the  olfspring 
of  his  children.  No  amount  of  reasoning  can 
throw  much  light  on  the  meaning  of  the  will. 
In  our  opinion,  the  language  used  conforms 
to  the  general  purpose  of  the  law,  and  is  best 
interpreted  by  the  general  rules  before  refer- 
red to."  We  think  the  language  of  Mr.  Jus- 
tice Campbell  applicable  to  the  will  before  us. 
and  that  it  controls  this  case.  See,  also.  Poin- 
ter V.  Porter,  50  Mich.  4.56,  15  N.  W.  5.50; 
Rivenett  v.  Bourquin,  53  Mich.  10,  18  N.  W. 
537.     In  this  view  of  the  intent  and  construe- 


REMAINDERS. 


207 


tiou  of  the  will,  the  court  below  was  correct, 
and  found  in  its  decree  that  the  interest  of 
Eleanor,  at  her  death,  descended  in  equal 
shares  to  Clotilde,  the  mother,  Louis,  Emily, 
Sarah,  Josephine,  and  Margaret.  The  mother 
having  died  and  devised  the  property  to  Lou- 
is, Sarah,  and  Josei>hlne,  the  decree  Axes  the 
title  at  the  time  of  the  submission  of  the 
cause  as  follows:  Emily's  estate,  21-54;  Sa- 
rah's estate,  22-54;  Louis,  4-54;  Margaret, 
3-54;  Florence  Brewer,  2-54;  and  Horace 
Brewer,  2-54,— being  the  share  divided  be- 
tween them  belonging  to  Josephine,  and 
which  she  conveyed  to  Morton.  The  mort- 
gages given  by  Emily  were  decreed  to  be  a 
valid   lien   upon   an  undivided   21-54   of   the 


property.  That  the  21-54  belonging  to  Em- 
ily's estate  passed  in  equal  shares  of  7-54  to 
Sarah,  Josephine,  and  Louis,  subject  to  the 
life-estate  of  August  Henquenet.  The  court 
also  found  that  the  Brewer  children,  through 
Mrs.  Paquette's  deed  of  one-twelfth  of  these 
premises  to  Morton,  under  whom  they  claim, 
were  entitled  to  so  much  of  her  share  of 
Emily's  interest  in  the  premises  as  was  eijual 
to  one-twelfth  of  the  same.  The  decree 
should  be  affirmed,  with  costs  of  this  court 
against  the  complainant  Louis  J.  I'Etourneau, 
in  favor  of  the  defendants  Brewer,  Henque- 
net, De  Broux,  and  Duehaineau. 

GRANT,  J.,  concurred. 


208 


ESTATES  IN   REAL   TROPERTY. 


WHITESIDES  et  al.  t.  COOrER. 

(20  S.  E.  295,  115  N.  C.  570.) 

Supreme  Court  of  North  Carolina.     Oct.  24, 
1894. 

Appeal  from  superior  court,  Buncombe  coun- 
ty;   Armfield,  Judge. 

Action  by  John  B.  Whitesides,  as  guardian, 
and  others,  against  C.  S.  Cooper,  to  recover 
an  undivided  one  sixth  interest  in  certain 
lauds,  claimed  to  have  been  devised  to  them 
by  the  will  of  their  grandfather,  John  B. 
NVliitesides,  deceased.  From  a  decision  for 
plaintiffs,  defendant  appeals.     Affirmed. 

P,  A.  Sondley  and  W.  R.  Whitson,  for  ap- 
pellant.    M.  E.  Carter,  for  appellees. 

SHEPHERD,  C.  J.  The  numerous  author- 
ities cited  in  the  elaborate  brief  of  the  plain- 
tiffs' counsel  fail  to  convince  us  that  we  are 
warranted  in  so  far  departing  from  the  plain 
and  natural  import  of  the  language  used  in  the 
limitation  before  us  as  to  hold  that  the  seven 
sons  named  in  the  will  of  their  father  took 
a  vested  remainder  in  the  land  therein  devis- 
ed. Fully  appreciating,  as  we  do,  the  pub- 
lic policy  which  induces  the  courts  to  favor 
the  early  vesting  of  estates,  we  are  never- 
theless of  the  opinion  that  it  would  be  doing 
violence  to  the  most  liberal  rules  of  con- 
struction were  we  to  say  that  it  was  the  in- 
tention of  the  devisor  that  the  estates  lim- 
ited to  his  said  sons  should  vest  before  the 
death  of  his  widow,  the  life  tenant.  On  the 
contrary,  it  was  his  evident  purpose  that  the 
entire  remainder  in  fee  should  be  disposed  of 
absolutely  at  a  definite  time,  and  that  he 
did  not  intend  that  the  remainder  as  to  any 
part  of  the  property  should  become  vested 
while  the  remainder  in  the  residue  was  de- 
pendent upon  a  contingency.  After  a  limi- 
tation to  the  wife  for  life,  the  will  proceeds 
as  follows:  "At  the  death  of  my  said  wife, 
the  said  plantation,  with  all  its  rights  and 
interests,  I  bequeath  and  devise  to  our  seven 
sons,  namely,  Henry  Clay,  James  Hardy, 
Charles  lincoln,  Frank  Patton,  Simpson  Jar- 
rett,  William  Ratliff,  and  John  Bowman,  or 
such  of  them  as  may  be  living  at  their  moth- 
er's death,  and  to  tbeir  heirs,  share  and 
share  alike;  and  if  any  one  or  more  of  our 
said  sons  should  be  dead,  leaving  lawful 
issue,  said  issue  shall  take  the  deceased 
father's  share  in  each  and  every  such  case." 
The  words  we  have  italicized  very  clearly 
do  not  divest  by  way  of  condition  or  other- 
wise any  estate  previously  limited,  but  are 
manifestly  used  as  a  part  of  the  descrip- 
tion of  the  r>ei*sons  who  are  to  take;  and 
these  persons  are  plainly  such  only  of  the 
sons  as  may  survive  the  life  tenant.  In  other 
words,  the  limitation,  with  a  very  slight 
ti-ansposition  of  the  words,  reads,  "To  such 
of  my  sons,  Henry  Clay,  James  Hardy,"  etc., 
"as  may  be  living  at  their  mother's  death, 
and  to  their  heirs."  If  the  language  indi- 
cating survivorship  were  at  all  doubtful,  the 


con  sir  action  we  have  adopted  would  be  well 
sustained  by  the  fact  that  the  words  of  in- 
heritance do  not  immediately  follow  the 
names  of  the  .seven  sons,  but  they  follow  the 
qualifying  language,  "such  of  them  as  may 
be  living  at  their  mother's  death."  Under 
the  construction  we  have  put  upon  the  will 
there  can  be  no  question  that  the  limitations 
to  the  sons  were  contingent  remainders,  the 
contingency  being  that  they  should  survive 
their  mother,  and,  failing  in  this  as  to  any 
one  or  more  of  them,  the  remainder  to  vest 
in  ills  or  their  issue  as  purchasers.  This, 
as  we  have  said  in  Watson  v.  Smith,  110 
N.  C.  6,  14  S.  E.  640,  is  a  limitation  of  sev- 
eral concurrent  fees  by  way  of  substitutes 
or  alternatives,  one  for  the  other,  "the  latter 
to  take  effect  in  case  the  prior  one  should 
fail  to  vest  in  interest,  and  is  known  as  a 
remainder  on  a  contingency  with  a  double 
aspect."  If  one  of  the  sous  die  before  the 
mother,  his  remainder  is  at  an  end,  and  can 
never  vest,  and  another  remainder  to  the 
issue  is  substituted,  who  take  nothing  from 
their  father,  but  directly  from  the  devisor. 
That  the  limitation,  under  the  construction 
we  have  adopted,  is  a  contingent  remainder, 
is  apparent  fi'om  the  decisions  of  this  court, 
and  these  decisions,  it  is  believed,  are  in 
harmony  with  the  principles  of  the  common 
law  as  enunciated  by  the  most  approved  au- 
thorities in  other  jurisdictions.  In  Starnes 
V.  Hill,  112  N.  C.  1,  16  S.  E.  1011,  and  Clark 
V.  Cox  (at  this  term)  20  S.  E.  176,  we  quoted 
with  approval  the  language  of  Mr.  Gray  in 
his  excellent  work  on  Perpetuities:  "That 
the  true  test  in  limitations  of  this  character 
is  that,  if  the  conditional  element  is  incorpo- 
rated into  the  description  of  the  gift  to  the 
remainder-man  [as  it  is  in  the  case  under 
consideration],  then  the  remainder  is  con- 
tingent; but  if,  after  the  words  giving  a 
vested  interest,  a  clause  is  added  divesting 
it,  the  remainder  is  vested.  Thus,  on  a  de- 
vise to  A.  for  life,  remainder  to  his  children, 
but  if  any  child  die  in  the  lifetime  of  A.  his 
share  to  go  to  those  who  survive,  the  share  of 
each  child  is  said  to  be  vested,  subject  to 
be  divested  by  its  death.  But,  on  a  devise 
[as  in  the  present  case]  to  A.  for  life,  re- 
mainder to  such  of  his  children  as  survive 
him,  the  remainder  is  contingent."  In  Wat- 
son V.  Watson,  3  Jones,  Eq.  400,  the  devise 
was  to  A.  for  life,  and  at  his  death  to  such 
of  his  children  as  might  then  be  living,  and 
the  issue  of  such  as  might  have  died  leaving 
issue.  It  was  held  that  A.  was  tenant  for 
life,  "with  a  contingent  remainder  in  fee 
to  his  children  who  may  be  living  at  his 
death,  and  to  the  issue  of  such  children  as 
may  have  died  in  his  lifetime,  leaving  chil- 
dren." See  also,  Watson  v.  Smith,  110  N. 
''.  6,  14  S.  E.  640.  In  Williams  v.  Hassell, 
74  N.  C.  434,  the  court  said  that,  "inasmuch 
as  the  lands  are  devised  to  the  first  takers 
for  life  only,  with  remainders  to  such  of  their 
children  as  should  l>e  living  at  their  death, 
it   cannot   be   ascertained    now    who   are   to 


ALTERNATE  REMAINDERS. 


209 


take  the  remainder."  In  Young  v.  Young, 
97  N.  C.  132,  2  S.  E.  78,  the  court  said: 
"The  contingent  remainders  limited  on  the 
termination  of  the  life  estate  are  to  such 
of  her  children  as  are  then  living,  and  to 
the  then  living  issue  of  such  as  have  died 
leaving  issue;  so  it  is  impossiljle  to  tell  who 
will  be  entitled  when  the  life  tenant  dies." 
In  Ex  parte  Miller,  90  N.  C.  023,  there  was 
a  devise  of  land  to  A.  for  life,  with  n-main- 
der  to  such  children  as  she  may  leave  her 
surviving,  and  it  was  held  that  the  children 
look  contingent  remainders.  Without  resort- 
ing to  the  text-books,  these  authorities  abun- 
dantly show  that  the  element  of  survivorship 
in  our  case  fully  characterizes  the  limitiition 
as  a  contingent  remainder. 

In  view  of  the  construction  we  have  placed 
upon  the  language  of  the  will  and  of  the  de- 
cisions of  our  ow^n  court,  we  do  not  deem  it 
necessary  to  review  the  many  English  and 
other  cases  cited  by  counsel.  None  of  them 
are  directly  iu  point,  and,  even  if  they  were, 
we  would  not  be  inclined  to  depart  from  our 
own  decisions,  which,  as  we  have  already  re- 
marked, are,  in  our  opinion,  well  supported 
by  principle  as  well  as  authority.  If  the 
will  should  read  as  we  have  construed  it  (and 
of  this  we  think  there  can  be  but  little 
doubt),  it  is  clear  that  these  remainders  are 
contingent.  The  case  most  strongly  pressed 
upon  us  on  the  argument  is  Ex  parte  Dodd, 
Phil.  Eq.  97.  The  decision  turned  upon  the 
construction  placed  upon  the  language  of  the 
will,  under  which  it  seems  that  the  limita- 
tion Avas  general;  that  is,  to  all  of  the  chil- 
dren of  the  life  tenant  or  the  issue  of  such 
children.  The  element  of  survivorship  as  a 
condition  to  the  vesting  of  the  remainder 
was  considered  as  absent,  and  it  was  held 
that  the  remainder  was  vested  as  to  the 
children  living,  subject,  of  course,  to  open 
and  let  in  after-born  children,  or  the  issue  of 
such  as  should  die  before  the  life  tenant. 
That  this  is  the  ratio  decidendi  of  the  case  i» 
apparent  from  the  opinion  of  the  court  in  Ir- 
Tin  v.  Clark,  98  N.  C.  437,  4  S.  E.  30.  The 
limitation  there  was  "to  Margaret  Irvin  and 
her  husband,  during  tlieir  natural  lives,  and 
to  descend  to  the  children  of  said  Margaret 
equally."  This  was  treated  as  a  vested  re- 
mainder, but  the  court  was  careful  to  say 
that:  "If  the  devise  had  been  to  those  chil- 
dren living  at  the  death  of  their  mothei", 
there  would  have  been  a  contingent,  and  not  a 
vested,  interest  in  either;  for, until  that  event 
occurred,  it  would  not  be  known  who  would 
take,  and  in  such  case  the  contingent  interest 
could  not  be  sold  by  a  court  of  equity.  But 
where  the  gift  is  general,  not  being  confined 
to  survivors  when  to  take  effect,  it  is  other- 
wise, and,  by  representation,  those  who  may 
afterwards  come  into  being  are  controlled  by 
the  action  of  th(»  court  upon  those  whose  in- 
terests are  vested,  but  whose  possession  is 
in  the  future.  The  distinction  is  pointed  out 
by  Battle,  .T.,  delivering  the  opinion  in  Ex 
parte  Dodd."  As  we  have  seen,  the  remaiu- 
GATES,R.P.— 14 


dor'^  to  the  sons  being  limited  only  to  such  of 
them  as  survived  their  mother,  and  Simpson 
.Tarrett  Whitesides,  one  of  the  said  sons,  hav- 
ing died  in  1874,  before  the  death  of  the  life 
tenant  in  1887,  it  must  follow  that  his  chil- 
dren, the  plaintiffs,  acquired  the  interest  in 
controversy  as  purchasers;  and  the  only 
question  which  remains  to  be  determined  is 
whether  they  are  precluded  from  asserting 
their  title  by  the  conveyance  of  their  father, 
and  the  proceedings  for  partition  imder 
which  the  land  was  sold,  and  purchased  by 
one  Davis,  under  whom  the  defendant  claims. 

2.  If  the  view  we  have  taken  of  this  lim- 
itation is  correct,  it  is  hardly  necessary  to 
cite  authority  in  support  of  his  honor's  rul- 
ing that  the  plaintiffs  are  not  rebutted  by  the 
conveyance  and  warranty  of  their  father  in 
1807.  The  case  of  Flynn  v.  AYilliams,  1  Ired. 
509,  is  not  in  point.  It  was  there  held  that 
where  one  having  an  estate  of  inheritance  in 
possession  sells  the  same  with  general  war- 
ranty, his  heirs  ai'e  bound,  whcjther  the  war- 
ranty be  lineal  or  collateral,  and  whether 
they  have  assets  or  not.  In  the  present  ca.se 
no  estate  w^hatever  vested  in  the  ancestor, 
and  his  children  who  take  as  purchasers  un- 
der the  will  are  therefore  not  bound  by  his 
warranty.  Even  had  a  life  estate  vested  in 
him,  his  warranty  would  likewise  have  been, 
ineffectual  by  way  of  rebutter.  Code,  §  1334; 
Starnes  v.  Hill,  supra. 

3.  Were  the  plaintiffs  bound  by  the  sale 
for  partition?  It  appears  that  in  1870  John 
Kimberly  (whp  had  purchased  the  interest  of 
Simpson  Jarrett  AYhitesides),  together  with 
the  life  tenant,  Catherine,  and  the  other  con- 
tingent remainder-men.  united  in  a  petition 
for  the  sale  of  the  land  in  partition.  Under 
a  decree  rendered  in  this  proceeding  the  land 
was  sold,  and  T.  K.  Davis  became  the  pur- 
chaser. The  defendant  claims  under  the  said 
Davis,  and  denies  the  claim  of  the  plaintiffs 
that  they  are  tenants  in  common  with  him  to 
the  extent  of  one-sixth  interest  in  the  said 
land.  The  life  tenant,  Catherine,  having  died 
in  1887,  the  plaintiffs'  contention  must  be  sus- 
tained, unless  they  are  bound  by  the  decree 
of  sale.  Neither  these  plaintiff's  (if,  indeed, 
they  wei'e  in  existence  at  that  time)  nor  their 
father  were  parties  to  the  proceeding,  but  it 
is  insisted  that  they  were  represented  by 
others  of  the  same  class,  or  at  least  by  the 
life  tenant.  It  is  plain  that  the  other  par- 
ties could  not  represent  these  plaintiffs  as  a 
part  of  the  same  class,  and  upon  this  point 
it  is  only  necessary  to  refer  to  InMn  v.  Clark, 
supra,  and  the  authorities  therein  cited. 
Eipially  imteuable  is  the  position  that  these 
contingent  remainder-men  were  represented 
by  the  life  tenant.  This  would  be  a  very 
radical  departure  from  well-settled  princi- 
ples, and  has  received  no  countenance  from 
this  court.  In  Overman  v.  Tate,  114  N.  C. 
571,  19  S.E.70G,we  quoted  with  approval  the 
language  of  Lord  Hardwicke  in  Hopkins  v. 
Hopkins,  1  Atk.  590,  that  "if  there  are  ever 
so  many  contingent  limitations  of  a  trust,  it 


210 


ESTATES   IN  REAL   PROPERTY. 


is  an  established  rule  that  it  is  sufficient  to 
briug  the  tmstees  before  the  court,  together 
with  him  in  whom  the  first  remainder  of  in- 
heritance is  vested;  and  all  that  may  come 
after  will  be  bound  by  the  decree,  though  not 
in  esse,  unless  there  be  fraud  and  collusion 
between  the  trustees  and  the  first  person  in 
whom  the  remainder  of  inheritance  is  vest- 
ed." In  referring  to  the  application  of  this 
principle  in  one  or  two  jurisdictions  where 
the  first  remainder  was  only  for  life,  we  stat- 
ed that  we  were  not  prepared  to  adopt  such 
a  view,  and,  a  fortiori,  would  it  be  r(^ected 
in  a  case  like  the  present,  where  the  limita- 
tions are  not  in  trust,  but  purely  legal.  Un- 
der the  peculiar  circumstances  of  the  case  re- 
ferred to  we  applied  the  principle  declared 
by  Lord  Hardwicke,  the  fact  that  tlie  limita- 
tions were  in  trust  not  having  been  adverted 
to  in  a  previous  ruling.  The  decision  was 
not  based  upon  the  idea  that  the  child  of  An- 
nie was  of  the  same  class  as  the  issue  of 
Caswell,  but  this  was  mentioned  as  a  circum- 
stance tending  to  show  that  but  little  preju- 


dice would  probably  result  by  the  application 
of  the  principle  above  stated,  under  the  par- 
ticular limitations  then  before  us. 

4.  Neither  is  there  any  force  in  the  conten- 
tion that  our  case  falls  within  the  principle 
of  England  v.  Garner,  90  N.  C.  197,  and  other 
decisions  in  which  the  court  has  gone  very 
far  in  sustaining  judicial  sales.  It  is  not 
pretended  that  these  plaintiffs,  even  if  in 
esse,  were  represented  by  guardian,  or  any 
one  claiming  to  be  their  attorney.  Indeed, 
they  are  not  mentioned  as  parties  in  any 
stage  of  the  proceeding,  nor  is  there  any- 
thing in  the  decree  which  purports  to  bind 
their  contingent  interests. 

5.  As  to  tlie  statute  of  limitations,  it  is  only 
necessary  to  say  that  it  did  not  begin  to  run 
against  these  plaintiffs  until  the  death  of  the 
life  tenant  in  1887.  Their  rights  accrued  on- 
ly upon  that  event,  and  it  is  therefore  clear 
that  they  are  not  barred.  After  a  careful 
consideration  of  the  elaborate  brief  of  coun- 
sel, we  have  been  unable  to  discover  any  er- 
ror in  the  rulings  of  his  honor.    Affirmed. 


KULE  IX  SHELLEY'S  CASE. 


211 


HARDAGE  et  al.  v.  STROOPE. 

(24  S.  W.  490.  58  Ark.  303.) 

Supreme   Ck)urt   of   Arkansas.     Dec.    23.    1S93. 

Appeal  from  circuit  court,  Clark  county; 
John  E.  Bradley,  Special  Judge. 

Suit  by  W.  S.  Stroope  against  Joseph  A. 
Hardage  and  others.  From  a  decree  for 
plaintiff,   defendants  appeal.     Reversed. 

U.  M.  &  G.  B.  Rose  and  J.  H.  Crawford, 
for  appellants.  Murry  &  Kinsworthy,  for 
appellee. 

BATTLE,  J.  J.  L.  Stroope  and  wife  con- 
veyed the  land  in  controversy  to  Tennessee 
M.  Carroll,  "to  have  and  to  hold  the  said 
land  unto  the  said  Tennessee  M.  Carroll  for 
and  during  her  natural  life,  and  then  to  the 
heirs  of  her  body,  in  fee  simple;  and  if,  at 
her  death,  there  are  no  heirs  of  her  body  to 
take  the  said  land,  then  in  that  case  to  be 
divided  and  distributed  according  to  the  laws 
for  descent  and  distribution  in  this  state." 
After  this,  Mrs.  Carroll  conveyed  it  in  trust 
to  James  M.  Hardage  to  secure  the  payment 
of  a  debt.  She  had  two  children  born  to 
her  after  the  conveyance  by  J.  L.  Stroope 
and  wife,  but  they  died  in  her  lifetime. 
She  died  leaving  no  heirs  of  her  body,  but 
left  her  father,  W.  S.  Stroope,  surviving. 
After  her  death  the  land  was  sold  under 
the  deed  of  trust,  and  was  purchased  by 
Joseph  A.  Hardage.  W.  S.  Stroope,  the  ap- 
pellee, now  claims  it  as  the  heir  of  Mrs. 
Carroll,  and  Joseph  A.  Hardage,  the  appel- 
lant, claims  it  under  his  purchase. 

The  rights  of  the  parties  depend  on  the 
legal  effect  of  the  following  words  contained 
in  the  deed  to  Mrs.  Carroll:  "To  have  and 
to  hold  the  said  land  unto  the  said  Ten- 
nessee M.  Carroll  for  and  during  her  natural 
life,  and  then  to  the  heirs  of  her  body,  in 
fee  simple;  and  if,  at  her  death,  there  are 
no  heirs  of  her  body  to  take  the  said  land, 
then  in  that  case  to  be  divided  and  distribut- 
ed according  to  the  laws  for  descent  and  dis- 
tribution in  this  state."  Appellee  contends 
that  Mrs.  Carroll  only  took  a  life  estate  in 
the  land  under  this  clause,  and  that  he  is 
entitled  to  the  remainder,  she  having  left  no 
descendants.  On  the  other  hand,  the  appel- 
lant contends  that  the  remainder  in  fee 
vested  in  the  children,  and,  when  they  died, 
Mrs.  Carroll  inherited  it,  and  the  whole 
estate  in  the  land  became  vested  in  her; 
and  that,  if  this  contention  be  not  true,  the 
deed  to  Mrs.  Carroll  comes  within  the  rule 
in  Shelley's  Case,  and  vested  in  her  the 
estate  in  fee  simple;  and  that  in  either  event 
he  is  entitled  to  the  land. 

It  is  obvious  that  the  deed  to  Mrs.  Carroll 
created  in  her  no  estate  in  tail.  Her  gran- 
tor reserved  no  estate  or  interest,  nor  grant- 
ed any  remainder,  after  a  certain  line  of 
heirs  shall  become  extinct,  but  conveyed  the 
land  to  her  to  hold  during  her  life,  and  then 
to  the  heirs  of  her  body  in  fee  simple.  No 
remainder  vested  in  her  children.  It  was 
to  be  inherited  by  the  heirs  of  her  body,  and 


they  were  her  descendants  who  survived 
her  and  were  capable  of  inheriting  at  the 
time  of  her  death.  They  might  have  been 
grandchildren.  They  were  not  the  children, 
as  they  died  in  the  lifetime  of  their  mother. 

The  effect  of  the  deed,  as  explained  by  the 
habendum,  in  the  absence  of  the  rule  in 
Shelley's  Case,  was  to  convey  the  land  to 
Mrs.  Carroll  for  her  life,  and  then  to  her 
lineal  heirs,  and,  in  default  thereof,  to  her 
collateral  heirs.  As  there  can  be  collateral 
heirs  only  in  the  absence  of  the  lineal,  the 
deed  conveyed  the  land  to  Mrs.  Carroll,  in 
legal  plu-aseology,  for  her  life,  and  after 
her  death  to  her  heirs. 

Two  questions  now  confront  us:  (1)  Din-s 
the  rule  in  Shelley's  Case  obtain  in  this  stat(»V 
(2)  And,  if  so,  does  the  deed  in  question  fall 
within  it? 

1.  Is  it -in  force  in  this  state? 

Section  560  of  Manslicld's  Digest  provides: 
"The  common  law  of  England,  so  far  as  the 
same  is  applicable  and  of  a  general  nature 
and  all  statutes  of  the  British  parliament  in 
aid  of  or  to  supply  the  defect  of  the  common 
law  made  prior  to  the  fourth  year  of  James 
the  First  that  are  applicable  to  our  own 
form  of  government  of  a  general  nature  and 
not  local  to  that  kingdom,  and  not  incon- 
sistent with  the  constitution  and  laws  of  the 
United  States  or  the  constitution  and  laws 
of  this  state,  shall  be  the  rule  of  decision  in 
this  state  unless  altered  or  repealed  by  the 
general  assembly  of  this  state." 

The  rule  in  Shelley's  Case,  as  stated  by 
Mr.  Preston,  which  Chancellor  Kent  says  is 
full  and  acciu-ate,  is  as  follows:  "When  a 
person  takes  an  estate  of  freehold,  legally 
or  equitably,  under  a  deed,  will,  or  other 
writing,  and  in  the  same  instrument  there 
is  a  limitation  by  way  of  remainder,  either 
with  or  without  the  interposition  of  an- 
other estate,  of  an  interest  of  the  same 
legal  or  equitable  quality,  to  his  heirs,  or 
heirs  of  his  body,  as  a  class  of  persons  to 
take  in  succession  from  generation  to  gen- 
eration, the  limitation  to  the  heirs  entitles 
the  ancestor  to  the  whole  estate."  Its  origin 
is  enveloped  in  the  mists  of  antiquity.  It  was 
laid  down  in  Shelley's  Case  in  the  twenty- 
third  year  of  the  reign  of  Queen  .Elizabeth, 
upon  the  authority  of  a  number  of  cases  in 
the  year  books.  Sir  William  Blackstone, 
in  his  opinion  in  Perrin  v.  Blake,  1  W.  Bl. 
672,  cites  a  case  in  IS  Edw.  II.  as  estab- 
lishing the  same  rule.  The  earliest  intelli- 
gible case  on  the  subject,  however,  is  that 
of  Provost  of  Beverly,  3  Y.  B.  9,  which  arose 
in  the  reign  of  Edward  III.,  and  substantial- 
ly declared  the  rule  as  laid  down  in  Shelley's 
Case. 

Various  reasons  have  been  assigned  for 
the  origin  of  the  rule.  Chancellor  Kent,  up- 
on this  subject,  says:  "The  judges  in  Per- 
rin V.  Blake,  supra,  imputed  the  origin  of  it 
to  principles  and  policy  deduced  from  feudal 
tenure,  and  that  opinion  has  been  generally 
followed  in  all  the  succeeding  discussions. 
The    feudal   poUcy   undoubtedly   favored   de- 


212 


ESTATES  IN  REAL  PROPERTY. 


scents  as  mucli  as  possible.  There  were 
feudal  burdens  which  attached  to  the  heir 
when  he  took  as  heir  by  descent,  from  which 
he  would  have  been  exempted  if  he  took  the 
estate  in  the  character  of  a  purchaser.  An 
estate  of  freehold  in  the  ancestor  attracted 
to  him  the  estate  imported  by  the  limitation 
to  his  heirs;  and  it  was  deemed  a  fraud  up- 
on the  feudal  fruits  and  incidents  of  ward- 
ship, marriage,  and  relief  to  give  the  prop- 
erty to  the  ancestor  for  his  life  only,  and 
yet  extend  the  enjoyment  of  it  to  his  heirs, 
so  as  to  enable  them  to  take  as  piu'chasers, 
in  the  same  manner,  and  to  the  same  ex- 
tent, precisely,  as  if  they  took  by  heretlitary 
succession.  The  policy  of  the  law  will  not 
permit  this,  and  it  accordingly  gave  the  whole 
estate  to  the  ancestor,  so  as  to  make  it  de- 
scendible from  him  in  the  regular  line  of  de- 
scent. Mr.  Justice  Blackstone,  in  his  argu- 
ment in  the  exchequer  chamber  in  Perrin  v. 
Blake,  does  not  admit  that  the  rule  took  its 
rise  merely  from  feudal  principles,  and  lie 
says  he  never  met  with  a  trace  of  any  such 
suggestion  in  any  feudal  writer.  He  im- 
putes its  origin,  gi'owth,  and  establishment 
to  the  aversion  that  The  common  law  had 
to  the  inheritance  being  in  abeyance;  and  it 
was  always  deemed  by  the  ancient  law  to  be 
in  abeyance  dm'ing  the  pendency  of  a  contin- 
gent remainder  in  fee  or  in  tail.  Another 
foundation  of  the  rule,  as  he  observes,  was 
the  desire  to  facilitate  the  alienation  of  land, 
and  to  throw  it  into  the  track  of  commerce 
one  generation  sooner,  by  vesting  the  inher- 
itance in  the  ancestor,  and  thereby  giving 
him  the  power  of  disposition.  Mr.  Har- 
gi'ave,  in  his  observations  concerning  the  rule 
in  Shelley's  Case,  considers  the  principle  of 
it  to  rest  on  very  enlarged  foundations;  and, 
though  one  object  of  it  might  be  to  prevent 
frauds  upon  the  feudal  law,  another  and  a 
greater  one  was  to  preserve  the  marked  dis- 
tinctions between  descent  and  purchase,  and 
prevent  title  by  descent  from  being  stripped 
of  its  proper  incidents,  and  disguised  with 
the  qualities  and  properties  of  a  pm-chase. 
It  would,  by  that  invention,  become  a  com- 
pound of  descent  and  purchase,— an  amphib- 
ious species  of  inheritance, — or  a  freehold 
with  a  perpetual  succession  to  heirs,  with- 
out the  other  properties  of  inheritance.  In 
Doe  V.  Laming,  2  Burrows,  1100,  Lord  Mans- 
field considered  the  maxim  to  have  been  orig- 
inally introducetl,  not  only  to  save  to  the 
lord  the  fruits  of  his  tenure,  but  likewise 
for  the  sake  of  specialty  creditors.  Had  tlae 
limitation  been  construed  a  contingent  re- 
mainder, the  ancestor  might  have  destroyed 
it  for  his  own  benefit;  and,  if  he  did  not, 
the  lord  woidd  have  lost  the  fimits  of  his 
tenure,  and  the  specialty  creditors  their 
debts." 

But.  whatever  may  have  been  the  cause  of 
its  origin,  its  effect  has  been  "to  faciUtate 
the  alienation"  of  land  "by  vesting  the  in- 
heritance in  the  ancestor,  instead  of  allow- 
ing it  to  remain  in  abeyance  un<^^il  his  de- 
cease." Its  operation  in  this  respect  has 
commended  it  to  the  favorable  consideration 


of  the  most  learned  and  able  men  of  Great 
Britain  and  the  United  States,  and  doubt- 
less contributed  to  its  preservation  and  con- 
tinuance, and  enabled  it  to  survive  the  inno- 
vation of  legislation  and  the  changes  and 
fluctiiations  of  centuries.  Based  upon  the 
broad  principles  of  public  policy  and  com- 
mercial convenience,  which  abhor  the  locking 
up  and  rendering  inalienable  any  class  of 
property,  it  has  ever  been  in  harmony  with 
the  genius  of  the  institutions  of  our  country, 
and  with  the  liberal  and  commercial  spirit 
of  the  age.  Hence,  it  has  been  recognized 
and  enforced  as  a  part  of  the  common  law  of 
nearly  every  state  where  it  has  not  been  re- 
pealed by  statute.  Starnes  v.  HiU,  (N.  C.> 
IG  S.  E.  1011;  Baker  v.  Scott,  62  111.  88^ 
Hageman  v.  Hageman,  129  HI.  1G4,  21  N.  E. 
814;  Doebler's  Appeal.  64  Pa.  St.  9;  Klepp- 
ner  v.  Laverty,  70  Pa.  St.  72;  Polk  v.  Paris, 
9  Yerg.  209;  Crockett  v.  Robinson,  46  N.  11. 
4.j4;  4  Kent,  Comm.  marg.  pp.  229-233;  2 
Washb.  Real  Prop.  (•'Ith  Ed.)  pp.  6r>5-6.'37. 

The  rule  has  never  been  chan.a'ed  in  this 
state  except  in  one  respect,— estates  tail  have 
been  abolished.  Section  643  of  Mansfield's 
Digest  provides  that,  whenever  any  one 
would  become  seised  at  common  law  "in  fee 
tail  of  any  lands  or  tenements  by  virtue  of  a 
devise,  gift,  gi-ant  or  other  conveyance,  such, 
person,  instead  of  being  or  becoming  seized 
thereof  in  fee  tail,  shall  be  adjudged  to  be 
and  become  seized  thereof  for  his  natural 
life  only,  and  the  remainder  shall  pass  in  fee 
simple  absolute  to  the  person  to  whom  the 
estate  tail  would  first  pass  according  to  the 
course  of  the  common  law  by  virtue  of  such 
devise,  gift,  grant  or  conveyance."  To  this 
extent  it  has  been  repealed;  in  other  re- 
spects it  remains  in  full  force  in  this  state ^ 
and  it  was  so  held  in  I'atty  v.  Goolsby,  51 
Ark.  71,  9  S.  W.  846. 

2.*  Does  this  case  come  within  the  rule? 

"Whenever  there  is  a  limitation  to  a  man 
which,  if  it  stood  alone,  would  convey  to  him 
a  particular  estate  of  freehold,  followed  by 
a  limitation  to  his  heii's  *  *  *  (or  equiva- 
lent expressions)  either  immediately,  or  aft- 
er the  interposition  of  one  or  more  particular 
estates,  the  apparent  gift  to  the  heirs, 
*  *  *"  according  to  the  rule  in  Shelley's 
Case,  "is  to  be  construed  as  a  limitation  of 
the  estate  of  the  ancestor,  and  not  as  a  gift 
to  his  heirs."  The  theory  was  that,  in  cases 
which  come  within  the  rule,  the  heirs  take  by 
descent  from  the  ancestor,  and  they  cannot 
do  so  imless  "the  whole  estate  is  united,  and 
vests  as  an  executed  estate  of  inheritance  in 
the  ancestor."  This  theory  was  based  upon 
the  fact  that  "the  ancestor  was  the  sole  as- 
certained and  original  attracting  object, — the 
groundwork  of  the  grantor's  or  testator's 
bounty," — and  upon  the  presumption,  arising 
from  the  fact,  that  the  grantor  or  testator, 
as  the  case  may  be,  "meant  the  person  who 
should  take  after  the  ancestor  should  be  any 
person  indiscriminately  who  should  answer 
the  description  of  heirs  *  ♦  *  of  the  an- 
cestor, and  be  entitled  only  in  respect  to  such 
description,"  and  that  the  estate  devised  or 


RULE  IX  SHELLEY'S  CASE. 


213 


conveyed  should  vest  in  them  in  tliat  char- 
acter only.  "In  order  to  effectuate  this  in- 
tent, and  secure  the  succession  to  its  intended 
objects,"  the  nde  rejects,  as  inconsistent  and 
incompatible  with  this  primary  or  paramount 
intent,  "any  other  intent  than  that  the  ances- 
tor should  take  an  estate  for  life  only,  and 
the  heirs  should  take  by  pm'chase,"  and  vests 
the  estate  of  inheritance  iu  the  ancestor. 
This  was  considered  necessary  to  accomplish 
the  primary  object  of  the  grantor  or  ancestor. 
2  Fearne,  Rem.  pp.  21G -220. 

"Hargrave  has  justly  observed,"  says 
Fearne  on  Remainders,  "that  the  rule  cannot 
be  treated  as  a  medium  for  discovering  the 
tesJator's  intention,  but  that  the  ordinary 
ruies  tor  the  interpretation  of  deeds  should 
be  tirst  resorted  to;  and  that,  when  it  is 
once  settled  that  the  donor  or  testator  has 
nsed  words  of  inheritance  according  to  their 
legal  import,— has  applied  them  intentionally 
to  comprise  the  whole  line  of  heirs  to  the  ten- 
ant for  life;  has  made  him  the  terminus  by 
reference  to  whom  the  succession  is  to  be 
regulated,— then  the  rule  applies.  But  the 
rule  is  a  means  for  effectuating  the  testator's 
primary  and  paramount  intention,  when  pre- 
viously discovered  by  the  ordinary  rules  of 
interpretation,— a  means  of  accomplishing 
that  intention  to  comprise,  by  the  use  of  the 
word  'heirs,'  the  whole  line  of  heirs  to  the 
tenant  for  life,  and  to  make  him  the  ter- 
minus, by  reference  to  whom  the  succession 
is  to  be  regulated;  and  the  way  in  which  the 
rule  operates,  as  a  means  of  doing  this,  is 
by  construing  the  word  'heirs'  as  a  word  of 
limitation,  or,  in  other  words,  by  construing 
the  limitation  to  the  heirs,  general  or  special, 
as  if  it  were  a  limitation  to  the  ancestor  him- 
self and  his  heirs,  general  or  special."  2 
Fearne,  Rem.  p.  221. 

In  Doebler's  Appeal,  64  Pa.  St.  9,  Judge 
Sharswood,  in  discussing  the  rule  in  Shelley's 
Case,  said:  "If  the  intention  is  ascertained 
that  the  heirs  are  to  take  qua  heirs,  they 
must  take  by  descent,  and  the  inheritance 
vest  in  the  ancestor.  The  rule  in  Shelley's 
Case  is  never  a  means  of  discovering  the 
intention.  I^  is  applicable  only  after  that 
has  been  discovered.  It  is  then  an  unbend- 
ing rule  of  law,  originally  springing  from  the 
principle  of  the  feudal  system;  and,  though 
the  original  reason  of  it — the  preservation  of 
the  rights  of  the  lord  to  his  relief,  primer 
seisin,  wardship,  and  marriage — has  passed 
away,  it  is  still  maintained  as  a  paii;  of  the 
system  of  real  property  which  is  based  on 
feudalism,  and  as  a  rule  of  policy.  It  de- 
clares inexorably  that,  where  the  ancestor 
takes  a  preceding  freehold  by  the  same  in- 
strument, a  remainder  shall  not  be  limited  to 
the  heirs,  qua  heirs,  as  purchasers.  If  given 
as  an  immediate  remainder  'after  the  free- 
hold, it  shall  vest  as  an  executed  estate  of 
inheritance  in  the  ancestor;  if  immediately 
after  some  other  interposed  estate,  then  it 
shall  vest  in  him  as  a  remainder.  Wherever 
this  is  so  it  is  not  possible  for  the  testator  to 
prevent  tliis  legal  cuusequeuce  by  any  declara- 


tion, no  matter  how  plain,  of  a  contrary  in- 
tention. This  is  a  subordinate  intent  which 
is  inconsistent  with,  and  must  therefore  be 
sacrificed  to,  the  paramount  one.  Even  if  he 
expressly  provides  that  the  rule  shall  not  ap- 
ply that  the  ancestor  shall  be  tenant  for  life 
only,  and  impeachable  for  waste,  if  he  in- 
terpose an  estate  in  trustees  to  support  con- 
tingent remainders,  or,  as  in  this  will,  declare 
in  so  many  words  that  he  shall  in  no  wise 
sell  or  alienate,  as  it  is  intended  that  he  shall 
have  a  life  interest  only,  it  will  be  all  in- 
effectual to  prevent  the  operation  of  the  rule. 
No  one  can  create  what  is  in  the  intend- 
ment of  the  law  an  estate  in  fee,  and  deprive 
the  tenant  of  those  essential  rights  and  priv- 
ileges which  the  law  annexes  to  it.  He  can- 
not make  a  new  estate  unknown  to  the 
law." 

"The  policy  of  the  rule,"  says  Chancellor 
Kent,  "was  that  no  person  should  be  permit- 
ted to  raise  in  another  an  estate  which  was 
essentially  an  estate  of  inheritance,  and  at 
the  same  time  make  the  heirs  of  that  person 
purchasers."    4  Kent,  Comm.  210. 

At  common  law  the  word  "heirs"  was  nec- 
essary to  convey  a  fee  simple  by  deed.  No 
equivalent  words  would  answer  the  purpose. 
If  the  conveyance  was  not  made  to  a  man 
and  his  heirs,  the  grantee  only  took  a  life 
estate,  notAvithstanding  the  estate  was  limit- 
ed by  such  phrases  as  "to  A.  forever,"  or  "to 
A.  and  his  succe.ssors,"  and  the  like.  An  ex- 
press direction  that  the  grantee  should  have 
the  fee  simple  in  the  land  would  not  have 
supplied  the  place  of  the  word  "heirs."  But 
in  this  state  the  question  as  to  what  estate  a 
deed  to  land  conveys  is  determined  bj'  the 
intent  of  the  parties,  as  ascertained  fi'om  the 
contents  of  the  deed  and  the  power  of  the 
grantor  to  convey.  When  construed  in  this 
manner,  it  is  obvious  that  the  intention  of 
the  deed  in  question  was  to  convey  the  land 
in  controversy  to  Mrs.  Carroll  for  life,  then 
to  her  lineal  heirs,  and,  in  default  thereof,  to 
her  collateral  heirs;  in  other  words,  to  Mrs. 
Carroll  for  life,  and,  after  her  decease,  to  her 
heirs.  The  intention  that  the  heirs  were  to 
take  only  in  the  capacity  of  heii-s  is  manifest. 
I  The  deed  comes  within  the  rule  in  Shelley's 
i  Case.  The  estate  of  inheritance  vested  iu 
I  Mrs.  CaiToll,  and  she  became  seised  of  the 
\  land  in  fee  simple.  2  Washb.  Real  Prop. 
!   (5th  Ed.)  p.  G53. 

I      "As  a  consequence  from  the  foregoing  prin- 

j  ciples,  whoever  has  a  freehold  which,  by  the 

terms  of  the  limitation,  is  to  go  to  his  heirs, 

I  may  alien  the  estate,  subject  only  to  such  lim- 

[  itation  as   may   have  been   created  between 

his   freehold  and   the  inheritance  limited  to 

his  heirs."    2  Washb.  Real  Prop.  G51. 

It  follows,  then,  that  IMrs.  CarroU  had  the 
right  to  convey  the  fee  in  the  land  in  trust 
to  secure  the  payment  of  her  debts,  and  that 
a  sale  of  such  estate  under  the  deed,  and  in 
conformity  with  law,  was  valid. 

The  decree  of  the  court  below  is  reversed, 
and  the  cause  is  remanded  for  proceedings 
consistent  with  this  opinion. 


214 


ESTATES   IN   REAL   TROPERTY. 


EARNHART  t.  EARNIIART  et  al. 

(26  N.  E.  895,  127  Ind.  397.) 

Supreme  Court  of  Indiaca.    March  11,  1891. 

Appeal  from  circuit  court,  Noble  county ; 
Joseph  W.  Adair,  Judge. 

L.  W.  Wellcer,  for  appellant.  Zimraer- 
nian  &  Prickett,  for  appellees. 

OLDS,  C.J.  JohnEarnhart  died  testate. 
By  item  3  of  his  last  will  and  testament 
he  gave  to  his  granddaughter  Harriet 
Cook,  the  only  child  of  his  deceased  daugh- 
ter, iSusanah,  $500,  to  be  paid  within  one 
year  after  his  death,  or  within  one  year 
after  the  death  of  his  wife,  if  she  survived 
him.  It  is  specifically  stated  in  said  item 
that  said  legacy  shall  be  paid  by  devisees 
to  said  will  other  than  his  wife,  to- wit, 
"Nelson,  James,  Lewis, Thomas,  and  Will- 
iam Earnhart.  Jane  Wolf  and  Ellen  Wolf, 
in  equal  shares;  the  share  of  each  to  be 
a  charge  upon  the  lands  hereby  devised  to 
him  or  her,  respectively."  Item  10  of  the 
will  is  as  follows:  "I  give  and  devise  to 
my  son  William  Earnhart  for  and  during 
the  term  of  his  natural  life,  subject  to  the 
life-estate  of  my  said  wife  therein,  the  fol- 
lowing described  real  estate  in  Noble 
county,  Indiana,  to-wit:  The  north  half 
of  the  north-west  quarter,  and  the  west 
half  of  the  north-west  quarter  of  the  north- 
east quarter,  of  section  thirty-four,  (34,) 
in  township  thirty-four  (34)  north,  range 
nine  (9)  east.  At  the  death  of  said  William^ 
Earnhart  I  give  and  devise  said  lands  in 
fee-simple  to  the  persons  who  would  have 
inherited  the  same  from  the  said  William 
Earnhart  had  he  owned  the  same  in  fee- 
simple  at  the  time  of  his  death  ;  the  same 
to  go  to  said  persons  in  the  same  manner 
and  in  the  same  proportions  as  though 
said  William  Earnhart  had  owned  the 
same  in  fee-simple  at  the  time  of  his  death  ; 
but  the  provisions  of  this  item  should 
only  vest  in  the  said  William  a  life-estate 
in  said  lands,  and  nothing  more."  The 
appellant  brings  this  action,  setting  out  a 
coi)y  of  the  will,  and  alleging  that  he 
owns  the  fee  simple  title  to  the  land  de- 
scribed in  item  10  of  the  will;  and  asking 
that  the  will  be  so  construed  as  to  give  to 
him  the  fee-  simple  title  to  said  land,  and 
that  his  title  be  quieted  tothe  same;  mak- 
ing the  other  devisees  and  the  executor 
parties  defendant,  alleging  that  they 
claim  some  interest  in  said  land  adverse 
to  the  appellants.  The  appellees  demuri-ed 
to  the  complaint  for  want  of  facts,  which 
was  sustained,  exceptions  reserved,  and 
this  api)eal  is  prosecuted,  assigning  such 
ruling  as  error.  It  is  contended  that  item 
10  of  the  will  is  governed  by  the  rule  in 
Shelley's  Case,  and  that  it  gives  to  Will- 
iam Earnhart  a  fee-simple  title  to  the 
land.  It  is  settled  that  the  rule  in  Shel- 
ley's Case  is  recognized   as  law  aiid  a  rule 


of  property  in  tnis  state,  but  we  do  not 
think  it  applicable  to  the  item  of  the  will 
under  consideration.  The  rule  does  not 
apply  where  it  unequivocally  appears  that 
the  persons  who  are  to  take  are  not  to 
take  as  heirs  of  the  grantee  or  devisee.  In 
this  case  it  is  clearly  and  distinctly  ex- 
pressed, so  that  it  unequivocally  appears 
from  the  language  that  it  was  the  intent 
of  the  testator  that  the  appellant  should 
take  onl3'  a  life-estate  in  the  land.  It 
then  makes  a  further  devise  of  the  re- 
mainder of  the  estate  in  the  land  to  other 
persons,  describing  them,  not  by  name, 
but  in  a  definite  manner,  as  the  persons 
who  would  inherit  the  same  if  the  fee  was 
in  the  appellant,  and  distributes  it  be- 
tween such  persons  in  the  same  propor- 
tions as  they  would  inherit  from  said  ap- 
pellant. The  words  used  in  making  dis- 
position of  the  remainder  are  Avords"^ 
purchase,  descriptive  of  the  persons  to 
whom  the  fee  is  devised.  If  in  one  item  of 
the  will  the  testator  had  devised  to  his  son 
William  Earnhart  a  life-estate  in  the  par- 
ticular tract  of  land,  and  in  another  item 
had  made  disposition  of  the  remaining  fee 
after  his  death  to  the  wife  and  children 
of  the  said  William,  naming  them,  there 
could  be  no  possible  question  but  that 
William  would  take  a  life-estate,  and  his 
wife  and  children  would  take  the  fee;  nor 
do  we  think  there  can  be  any  difference  if, 
instead  of  naming  them,  the  will  described 
them  as  the  wife  and  children,  stating 
that  they  should  take,  one-third  to  the 
wife,  and  the  two-thirds  to  go  to  the  chil- 
dren in  equal  shares,  or,  if  it  described 
them  as  the  heii's  who  would  inherit  from 
William,  in  the  same  proportion  as  the 
law  would  cast  it  upon  them.  Certainly, 
there  can  be  no  difference  whether  the  tes- 
tator make  such  disi)osition  of  his  prop- 
erty in  one  or  in  sei)arate  items,  so  it  be 
clearly  expressed.  In  item  10  of  the  will 
under  consideration  tlie  intention  of  the 
testator  is  clearly  expressed  to  be  that 
William  take  only  a  life-estate,  and  a  sep- 
arate and  distinct  devise  of  the  remaining 
fee  at  his  death  to  the  heirs  of  William  in 
the  same  proportion  they  would  have  in- 
herited had  William  owned  the  same  in 
fee.  It  is  clearly  expressed  that  such  heirs 
shall  not  take  by  descent  from  William, 
but  by  purchase  from  the  testator.  This 
being  clearly  expressed  by  t*lie  will,  the 
rule  in  Shelley's  Case  does  not  aijply.  See 
Mining  Co.  v.  Beckleheimer,  102  Ind.  76,  I 
N.  E.  Rep.  202.  Where  it  clearly  ajjpears 
that  the  testator  did  not  intend  to  grant 
a  fee,  then  the  devise  will  not  be  so  con- 
strued as  to  vest  one.  Allen  v.  Craft,  109 
Ind.  476,  9  N.  E.  Rep.  919.  The  will  pro- 
vides that  the  appellant  shall  pay  his  por- 
tion of  the  legacy  given  to  the  grand- 
daughter Harriet  Cook,  and  makes  it  a 
charge  against  the  land.  There  was  no 
error  in  sustaining  the  demurrer  to  the 
complaint.  Judgnientartirmed,  with  costs. 


RULE  IN   iSHELLEYS  CASE. 


215 


SILVA  V.  HOPKINSOX  et  al. 
(41  N.  E.  1013,  158  111.  386.) 
Supreme  Court  of  Illinois.     Oct.  11,  1895. 
Appeal  from  superior  court,   Cook  county; 
W.  G.  Ewing,  Judge. 

Bill  by  Evangeline  S.  Hopkinson  and  Emma 
H.  Bowers  against  Frank  P.  Silva.  Com- 
plainants obtained  a  decree.  Defendant  ap- 
peals.    Affirmed. 

F.  S.  Moffett,  for  appellant  Lackner  & 
Butz,  for  appellees. 

WILKIN,  J.     Frank   P.   Silva,   the   appel- 
lant, on  .January  23,  1893,  entered  into  a  con- 
tract with  Evangeline  S.  Hopkinson  and  Em- 
ma H.    Bowei-s,   appellees,  to  purchase  from 
them  certain  real  estate  in  Chicago,— lot  9  of 
the  subdivision  of  lots  15,  21,  22,  23,  and  24    ] 
of  Hopkinson's  resubdivision  of  lots  4,  8,  9, 
and  10  in  block  13  of  the  Blue  Island  Land  & 
Building    Company's    subdivision,    known    as 
"Washington    Heights,"    as    said    subdivision 
is  recorded    in  the   recorder's   office   of  Cook 
county.     Silva,  upon  examining  the  absti-act 
of  title  to  the  property,   refused  to   comply 
with   the   conti-act,    on   the   ground   that  the 
fourth  clause  of  the  will  of  William  Hopkin- 
son,  deceased,  by  virtue  of  which   appellees 
claim  title  to  the  premises,  did  not  vest  the 
fee   absolutely   in  them,    and   therefore  they 
could  not  convey  a  perfect  title  to  him.     Ap- 
pellees thereupon  filed  their  bill  in  the  supe- 
rior court  of  Cook  county  to  compel  a  specific 
performance    of    the    contract.      A    demurrer 
was   mterposed   to   the   bill   on  the    grounds 
above  set  forth,   which  was  oveiTuled.     De- 
fendant electing   to   stand   by   his   demurrer, 
the  court  entered  a  decree  in  accordance  with 
the  prayer  of  the  bill,  and  the  cause  is  brought 
to  this  court  on  appeal. 

The  fourth  clause  of  said  will  is  as  follows: 
"After  the  death  of  my  said  wife,  Jane  Hop- 
kinson, I  give  and  devise  and  bequeath  all  '>f 
my  estate,  both  real  and  personal,  of  which 
I  may  be  possessed,  with  all  or  any  right, 
title,  or  interest  in  lands  or  personal  property 
I  may  acquire  after  the  date  of  this  will,  to 
my  only  t^-o  children,  Evangeline  Sarah  Hop- 
kinson and  Emma  Jane  Hopkinson,  to  be 
equally  divided,  share  and  share  alike,  and  to 
their  lawful  heirs;  but,  in  the  event  of  their 
death  without  issue,  then  and  in  such  an 
event,  if  the  executors  can  dispose  of  the  prop- 
erty to  advantage,  to  sell  immediately,  or 
within  two  yeai-s  from  the  date  of  their  de- 
cease; but  in  case  of  the  death  of  either  one 
of  my  daughters  the  surviving  one  to  inherit 
the  portion  of  the  deceased  sister,  if  she  dies 
without  issue."  Appellant  insists  that  the 
title  in  appellees  is  subject  to  be  defeated  in 
the  event  of  their  dying  without  issue.  Stop- 
ping with  the  sentence,  "and  to  their  lawful 
heirs,"  the  devise  to  the  daughters  is  an  es- 
tate of  freehold,  with  a  gift  to  their  lawful 


heirs  in  fee;    and  under  the  rule  in  Shelley's 
Case  the  word  "heirs"  is  one  of  limitation  of 
the   estate,    and    not   of    purchase,    and    the 
daughters    would    take    the    fee.      Baker     v. 
Scott,  02  111.  87;    Riggin  t.  Love,  72  111.  553; 
Carpenter  v.  Van  Oliuder,  127  111.  42,  19  N. 
B.  808;  Ilageman  v.  Hageman,  120  111.  108,  21 
N.  E.  814;   Fowler  v.  Black,  136  111.  303,  26  N. 
E.  570;    Yangieson  v.  Henderson,  150  111.  119, 
30  N.  E.  974.     But  counsel  for  appellant  says, 
in  determining  what  construction  shall  be  put 
upon  this  will,   we  must  ascertain  the  inten- 
tion of  the  testator,  as  he  has  in  and  by  his 
will  expressed  it.     This  is  a  frequent  objec- 
tion to  the  rule  referred  to,  but  no  principle  of 
law  is  better  established  than  that,  although 
the  testator  did  intend  the  first  taker  to  have 
but  a  life  estate,  yet,  if  the  technical  words 
are  used,  that  mteution,  be  it  ever  so  clearly 
expressed,    will    be    defeated,    and    the    first 
devisee    allowed    to    take   the    whole    estate. 
Carpenter  v.  Yan  Oliuder,   Fowler  v.   Black, 
and  Yangieson  v.  Henderson,  supra.     The  on- 
ly method  in  which  an  instrument  employing 
the   word   "heirs"   can  be  shown   not  to  bo 
within  the  rule  is  by  showing  that  the  word 
was   not   employed  in   its   strict  legal   sense. 
Carpenter  v.  Yan  Olinder,  supra.     And  there- 
fore, unless  the  subsequent  language  in  the 
foregoing    clause    of   the    wOl:    "But,    in    the 
event  of  their  death  without  issue,  then  and 
in  such  an  event,  if  the  executoi-s  can  dispose 
of  the  property  to  advantage,   to  sell  imme- 
diately,  or  within  two  years  from  the  date 
of   their   decease;    but   in   case  of  the   death 
of  one  of  my  daughters  the  surviving  one  to 
mherit  the  portion  of  the  deceased  sister,  if  * 
she  dies  without  issue,"— shows  that  the  tes- 
tator used  the  words  "lawful  heirs"  in  some 
other  than  the  technical  sense,  the  question 
of  intention  does  not  arise  in  the  case.     It  is 
also  well  settled  that  the  words  must  be  given 
their  legal  effect,  even  though  the  subsequent 
words  are  inconsistent  therewith,  unless  they 
make   it  clear  that  they  were  not   so   used. 
Griswold  v.  Hicks,  1.32  111.  494,  24  N.  E.  03, 
and  authorities   there    cited.     The  subsequent 
language  in  this  Avill  falls  far  short  of  mak- 
ing it  clear  that  the  testator  used  the  word 
"heirs"  in  other  than  their  legal  sense.     There 
would  seem  to  be,  from  the  whole  language 
of  the  clause,  no  greater  reason  for  saying 
that  by  the  word  "heirs"  he  meant  issue  than 
for  saying  that  by  the  subsequent  word  "is- 
sue"   he    meant    heirs.     Y'e    are    of    opinion 
Uien  that  the  devise  is  within  the  rule,  and 
that  a  fee-simple  title  is  vested  in  appellees. 
This  disposes  of  the  contention  that  by  the 
clause  of  the  will  in  question   an  executoiy 
devise  was  made.     The  daughters,  taking  the 
fee.  have  the  absolute  power  of  disposition, 
and  no  executory  devise  can  in  such  case  ex- 
ist.    Y'olfer  v.  Hemmer,  144  111.  554,  33  N. 
E.  751.     The  judgment  of  the  superior  court 
will  be  affirmed.     Affii-med. 


216 


ESTATES   IN   REAL   PROPERTY. 


DEFREESE  v.  LAKE  et  ux. 
(67  N.  W.  505.) 
Supreme  Court  of  Michigan.    May  26,  1896. 
Error  to  circuit  court,  Shiawassee  county; 
Charles  H.  Wisuer,  Judge. 

Action  by  Aaron  Defreese  against  John  A. 
Lake  and  Mary  Lake.  JudL,'ment  for  plain- 
tiff, and  defendants  bring  error.    Reversed. 

Watson  &  Chapman,  for  appellants.  John 
T.  McCurdy,  for  appellee. 

HOOKER,  J,  One  Peter  Casler,  being 
owner  in  fee  of  the  premises  in  controversy, 
made  a  will  which  contained  the  following 
provisions:  "I  give  and  bequeath  to  my  wife, 
Betsey  Casler,  all  the  west  half  of  the  south- 
€ast  quarter,  and  the  south  half  of  the  east 
half  of  the  southeast  quarter,  except  so  much 
ol  said  land  on  the  south  as  will  make  forty 
acres,  on  section  thirty-one.  according  to  the 
original  survey  of  the  United  States,  being 
in  the  township  of  Shiawassee,  county  of 
Shiawassee  and  state  of  Michigan,  it  being 
the  same  farm  on  which  I  now  reside.  After 
her  decease  the  said  real  estate  above  de- 
scribed I  give  and  bequeath  to  Henry  Casler, 
my  son,  and  after  his  decease  said  real  es- 
tate to  belong  to  his  heirs."  It  appears  that, 
during  the  time  that  Betsey  Casler  occupied 
the  land,  it  was  assessed  for  taxes  to  her 
for  the  years  1874  and  1875.  It  was  sold  for 
these  taxes,  and  tax  deeds  were  executed  to 
Henry  Casler  on  December  9,  1870,  and  De- 
ceml)er  13,  1877.  After  the  testator's  death 
his  widow,  Betsey  Casler,  entered  and  oc- 
cupied the  premises  until  her  death,  which 
occurred  in  September,  1877.  Afterward  sJ 
Henry  Casler  entered  and  held  possession 
until  November  7,  1879,  when  he  conveyed 
the  premises  to  John  L.  Lake  by  warranty 
deed.  Mary  Lake  is  the  wife  of  John  Lake, 
and.  at  the  time  this  action  of  ejectment  was 
brought  against  them,  resided  with  him  upon 
the  premises.  Henry  Casler  died  Septem- 
ber 15,  1886,  leaving  issue.  The  plaintiff 
claims  title  to  the  land  in  question  under  quit- 
claim deeds  obtained  from  the  descendants  of 
Henry  Casler,  executed  and  delivered  before 
his  death;  also,  a  quitclaim  deed  purporting 
to  have  been  given  by  other  persons,  styling 
themselves  "heirs  at  law  of  Peter  Casler, 
deceased,"  dated  after  Henry's  death.  Some 
of  them  were  admitted  to  be  heirs  at  law  of 
Henry  Casler.  Thus  we  find  the  plaintiff 
claiming  title,  and  a  right  to  recover  the 
premises,  by  virtue  of  a  deed  from  Henry 
Casler's  heirs,  while  the  defendants  are  in 
possession,  claiming  under  a  deed  from  Hen- 
ry Casler  himself.  The  plaintiff  contends 
(1)  that  Henry  Casler  took  only  a  life  es- 
tate, with  remainder  to  his  heirs;  (2)  that 
the  purchase  of  the  lands  at  tax  sale  inured 
to  the  benefit  of  the  remainder-men,  and  title, 
as  against  them,  cannot  be  claimed  under 
such  deeds.  On  the  other  hand,  the  defend- 
ants say  that  Henry  Casler  took  title  in  fee 
simple,  under  the  will,  and  that,  failing  in 
that,  his  tax  deeds  gave  him  such  title. 


The  will  has  been  quoted.  It  conveyed  a 
life  estate  to  Betsey  Casler,  with  remainder 
to  her  son  Henry.  So  far  there  can  be  no 
dispute.  Was  this  a  remainder  in  fee  sim- 
ple? Obviously,  this  must  depend  upon  the 
construction  to  be  given  to  the  words,  "I 
give  and  bequeath  to  Henry  Casler,  my  son, 
and  after  his  decease  said  real  estate  to  be- 
long to  his  heirs."  Does  this  language  evince 
an  intention  upon  the  part  of  the  testator  to 
limit  Henry's  interest  to  an  estate  for  life? 
If  the  intention  had  been  to  devise  an  estaio 
in  fee  simple,  the  most  apt  and  proper  words 
would  have  been,  "I  give  and  devise  to  Hen- 
ry Casler,  my  son,  his  heirs  and  assigns  for- 
ever." An  equally  effective  and  perhaps  con^ 
mon  method  of  expression  would  be  "J^-glve 
and  devise  to  Henry  Casler,  my^^on,"  the 
law  in  such  case  supplying  the  necessary 
words  to  create  the  estate  in  fee  simple.  But 
this  testator  used  neither  expression,  but  add- 
ed to  the  devise  to  Henry  the  provision  that 
after  his  decease  "said  real  estate  should 
belong  to  his  heirs,"— words  which  neces- 
Barily  imply  that  Henry  Casler  was  to  have 
only  a  life  estate,  if  they  a;  e  not  to  be  treated 
as  superfluous.  We  are  not  without  prece- 
dents in  this  state  which  warrant  the  conclu- 
sion that  this  devised  a  life  estate.  Eraser 
V.  Chene,  2  Mich.  81,  construed  a  will  in 
which  the  following  language  was  used:  "I 
give  and  bequeath  to  my  beloved  son  Gabriel 
Chene,  my  eldest,  the  farm  I  now  reside  on. 
for  and  during  his  lifetime,  with  all  the  ap- 
purtenances thereon;  and  after  he,  my  said 
son,  the  said  Gabriel  Chene,  is  deceased,  then 
the  right,  title,  and  appurtenances  of  the 
aforesaid  farm  is  to  become  the  property  of 
said  Gabriel  Chene's  male  heirs."  The  court 
said,  "It  would  seem  to  any  one  reading  the 
win  in  this  case  that  the  intention  of  the 
voFtator  to  give  a  life  estate  only  to  his  son 
Gabriel  was  so  very  plain  that  it  could  not 
be  doubted."  In  the  case  of  Gaukler  v. 
Moran,  66  Mich.  3-54,  33  N.  W.  513,  the  tes- 
tator devised  premises  to  a  daughter  "during 
her  natural  lifetime,  and  after  her  death  to 
her  heirs  and  assigns."  This  was  held  to 
give  the  daughter  a  life  estate  merely.  See, 
also,  Cousino  v.  Cousino,  86  Mich.  323,  48  N. 
W.  1084;  Jones  v.  Deming,  91  Mich.  481,  51 
N.  W.  1119.  We  are  of  the  opinion  that  the 
words  used  indicated  a  plain  intention  to 
give  to  Henry  Casler  a  life  estate  only.  This 
being  so,  the  statute  (2  How.  Ann.  St.  §  5544) 
applies,  and  the  heirs  of  Henry  Casler  talve 
as  purchasers.  This  may  seem  at  variance 
with  the  case  of  Eraser  v.  Chene,  supra,  but 
it  is  not,  as  the  will  in  that  case  antedated 
the  statute. 

One  Hartwell  testitied  on  behalf  of  the  de- 
fendant that  he  drew  the  will,  and  that  he 
had  a  conversation  with  the  testator,  at  the 
time  the  will  was  drawn  and  executed,  in  re- 
gard to  the  provision  hereinbefore  mentioned, 
and  that  he  understood  the  testator  to  wish 
Henry  to  have  the  land  "in  his  own  name, 
free";  that  the  witness  "was  in  doubt,  some, 
how  to  word  the  will,  as  it  was  new  business 


RULE  IN  SHELLEY'S  CASE. 


217 


to  him";  and  that  "he  asked  the  testator 
particuhxrly  what  he  wished,— how  he  wished 
the  estate  disposed  of  after  his  death,— 
whether  Henry  was  to  be  allowed  to  use  it 
all,  or  keep  it  in  trust,"  and  he  said:  "'It 
is  no  matter.  Henry  will  not  have  anything 
left,  any  way.  It  is  all  for  Henry.'  Q.  Did 
you  understand  you  wore  creating  a  fee  sim- 
ple? A.  Yes,  sir.  Q.  By  the  use  of  those 
words?  A.  Yes,  sir."  This  testimony  was 
afterwards  stricken  out,  on  motion  of  plain- 
tiff's counsel,  upon  which  error  is  assigned. 
There  was  no  ambiguity  on  the  face  of  the 
instrument,  and  the  testimony  was  not  ad- 
missible. Fraser  v.  Chene,  supra;  Kinney  v. 
Kinney,  3-1  Mich.  '2'>0;  Waldron  v.  Waldron, 
45  Mich.  354,  7  N.  W.  Sl)4;  Forbes  v.  Bailing, 
94  Mich.  G25,  54  N.  W.  385. 

It  being  .settled  that  Henry  Casler's  title  to 
the  premises,  acquired  through  the  will,  t  r- 
minated  at  his  death,  we  will  next  consider 
the  question  of  the  tax  titles.  It  will  be  re- 
membered that  he  procured  a  tax  deed  of 
the  premises  before  the  termination  of  Bets?y 
Casler's  estate.  These  taxes  were  properly 
assessed  to  Betsey  Casler,  who  owed  the 
duty  of  payment,  both  to  the  state,  and  to 
the  remainder-men.  Jenks  v.  Horton,  93 
Mich.  13.  55  N.  W.  372;  Smith  v.  Blindlmry, 
(•>G  Mich.  319,  33  N.  W.  391.  But  H  n^y 
Casler  was  in  a  different  situation.  He  cer- 
tainly owed  no  duty  of  payment  to  the  state, 
though  his  interest  in  the  premises  was  lia- 
t)le  to  sale  therefor.  It  is  a  general  prop  sl- 
tion  that  a  life  tenant  to  whom  taxes  are  as- 
sessed, and  upon  whom  the  law  imposes  the 
burden  of  such  taxes,  cannot  acquire  the  ti- 
tle in  fee  by  allowing  the  premises  to  be 
sold  for  taxes,  and  biddiug  them  in,  thus  cut- 
ting off  the  remainder-man.  But  in  this  ca.se 
Henry  Casler  was  not  a  life  tomnt  in  po  ses 
sion,  and,  so  far  as  the  record  shows,  he  had 
not  done  anything  tending  to  show  whether  or 
not  he  had  accepted  the  devise  prior  to  the 
time  he  obtained  his  tax  deeds,  which  mani- 
festly he  was  under  no  obligation  to  do  un- 
less he  chose.  2  Redf.  Wills,  304,  and  cases 
<«ited;  Doe  v.  Smyth,  6  Barn.  &  C.  116;  4 
Kent,  Comm.  534;  Townson  v.  Tickell,  3 
Barn.  &  Aid.  31;  2  Story,  Eq.  Jur.  §§  1075- 
1079.  In  3  Washb.  Real  Prop.  G,  the  author 
says,  "An  heir  at  law  is  the  only  pe-  son  who, 
\)j  common  law,  becomes  the  owner  of  land 
without  his  own  agency  or  assent.  A  title 
by  deed  or  devise  requires  the  assent  of  the 
grantee  or  devisee  before  It  can  take  effe::;t." 
Again,  at  page  542,  the  author  say.s,  "It  is 
hardly  necessary  to  add  that  no  one  can  make 
another  the  owner  of  an  estate  against  his 
consent,  by  devising  it  to  him,  so  that  if  the 
devisee  disclaim  the  devise  it  becomes  in  p 
erative  and  goes  to  the  heir."  It  is  said  thit 
a  parol  disclaimer  will  not  prevent  the  dev- 
isee from  subsequently  claiming  the  devise, 
and  that  the  reason  of  the  necessity  of  a  deed 
grows  out  of  the  presumptive  vesting  of  the 
devised  interest  in  the  devisee  before  entry. 
See  Perry  v.  Hale,  44  N.   H.  3G5.     It  is,  in 


our  opinion,  illogical  to  say  that  a  deed  is 
necessary  because  of  the  presumption  that 
the  title  has  vested,  when  the  title  does  not 
vest  by  a  devise  unless  there  is  an  accept- 
ance. It  would  seem  that  the  deed  wotild 
be  necessary  only  where  the  title  had  actual- 
ly vested,  which  appears  to  dep-^nil  upon  ac- 
ceptance. If  it  be  admitted  that  the  law  will 
presume  an  acceptance,  it  is  not  a  conclusive 
presumption,  and,  when  it  is  shown  to  have 
been  renoimced,  it  is  shown  that  the  title  did 
not  vest,  and  apparently  there  would  be  no 
occasion  for  divesting  a  title  that  had  not 
vested.  There  are  two  classes  of  cases  in 
which  it  may  become  necessary  to  deter  i:ine 
what  constitutes  a  renunciation  or  acceptance: 
(1)  Ca.ses  where  the  devisee  or  his  privies 
are  denying  renunciation;  and  (2)  where  they 
are  asserting  it.  In  the  former  (i.  e.  befc-e 
the  devisee  can  be  deprived  of  the  estite) 
there  are  cases  that  hold  that  re  U'.:ciuioi 
is  not  to  be  lightly  inferred,  and  tint  equ'vo- 
cal  acts  will  not  do,  and  it  has  been  conter.ded 
that  a  deed  is  necessary  when  the  devise  is  of 
an  absolute  and  uncouditiona  fee.  On  the 
other  hand,  if  the  devisee  or  h's  privies  are 
as.serting  renunciation,  or,  what  is  equiva- 
lent, denying  acceptance,  it  has  been  said  that 
"the  presumption  of  assent  is  never  conclu- 
sive; neither  are  acts  which  ind  cate  an  in- 
tention to  accept."  Wheeler  v.  I  ester.  1 
Bradf.  Sur.  293;  Perry  v.  Hale,  supra.  But 
an  entry  and  occupation  under  the  will  have 
been  considered  the  most  satisf.ictoiy  evi- 
dence of  acceptance,  in  cases  where  action 
has  been  brought  against  the  devisee,  where 
the  devise  was  subject  to  the  payment  of 
debts.  Pickering  v.  Pickering,  6  N.  H.  120; 
Glenn  v.  Fisher,  G  .Tjhn^.  Ch.  34;  Kelsey  v. 
Western,  2  N.  Y.  501.  In  this  case  the  devisee 
is  dead,  and  his  grantee  sets  up  the  claim 
that  he  entered  and  occupied  the  prem's  s 
under  another  title;  i.  e.  a  tax  title  acquired 
after  the  devise,  but  before  the  end  of  the 
preceding  estate.  There  is  no  other  evidence 
bearing  upon  the  question  of  aci'eptance  or 
renunciation,  except  the  fact  thit  he  clahneJ 
title  in  fee,  contrary  to  the  terms  of  the  de- 
vise, and  we  are  asked  to  determine  whe  h  r 
this  was  sufficient  evidence  or  renunciaiiju 
to  go  to  the  jury.  In  Doe  v.  Smyth.  G  Barn. 
&  C.  112,  the  court  said  that  a  devisee  can- 
not be  compelled  to  accept  the  devised  in- 
terest, but  may  by  some  mode  renoim^^e  and 
disclaim  it.  "*  *  *  And  it  is  not  necessary 
in  the  present  case  to  decide  whether  such 
renunciation  and  disclaimer  may  be  by  pir  1, 
because,  in  whatever  form  they  are  made,  we 
think  they  must  be  a  clear  and  unequivrcal 
disclaimer  of  any  estate  in  tlie  Imd.  In  this 
case  the  disclaimer  is  not  of  any  estate  in  the 
land,  but  only  of  benefit  under  the  will,  ac- 
companied in  every  instance  by  an  asser  ion 
of  a  right  to  the  land  by  a  higher  and  b?t  er 
title.  This  proceeded  on  a  mi.-^take  of  wlsich 
the  devisee  (the  lessor  of  the  plaintiff),  though 
slowly  and  reluctantly,  was  at  last  convinced. 
No  case  similar  to  this  was  cited,  or  has  be:n 


218 


ESTATES   IN   REAL  PROPERTY. 


found,  and  we  therefore  think  the  lessor  of 
the  plaintiff  is  not  precluded  from  actin^r  un- 
der her  improved  judgment,  and  taking  the 
land  as  devisee  under  the  will."  Here  the 
devisee  was  denying  renunciation,  and  her 
contention  was  sustained.  Whatever  we  may 
think  of  the  holding  that  a  disjlaimer  of  a 
devise  is  not  good  unless  it  goes  to  the  extent 
of  disclaiming  any  interest  in  the  land,  al- 
though such  claim  may  be  based  upon  other 
and  better  title,  it  must  be  conceded  that  the 
case  turned  upon  that,  or  that,  at  all  events, 
it  did  not  decide  that  a  disclaimer  must  be 
by  deed.  This  case  was  deci.Ied  in  182S. 
The  case  of  Bryan  v.  Hyrc,  1  Rob.  (Va.)  102, 
decided  in  1842,  affirmed  a  case  where  the  trial 
judge  had  instructed  the  jury  that  a  disclaimer 
of  a  devise  must  be  in  writing.  This  is 
based  upon  the  rule  laid  down  in  Coke  vp  m 
Littleton,— that  where  a  devisee  enters  the 
freehold  is  in  him  before  he  enters,  and  in 
that  case  the  heir  takes  -nothing.  Co.  Litt 
Ilia.  The  case  of  Townson  v.  Ti  kell  waa 
cited,  but  it  does  not  decide  the  point,  for 
there  the  disclaimer  was  in  writing.  The  de- 
cision really  rests  upon  Doe  v.  Smyth,  6 
Bam.  &  C.  112,  which,  as  has  been  sho  vn, 
did  not  pass  upon  the  question.  Indeed,  thit 
case  (i.  e.  Doe  v.  Smyth)  seems  to  have  over- 
looked the  earlier  case  of  Townson  v.  Tickell, 
3  Barn.  &  Aid.  31,  decided  in  1819.  The  Vir- 
ginia case  mentions  it  to  disapprove  tlie  op'n- 
ion  of  Holroyd,  J.,  where  he  says:  "I  think 
that  an  estate  cannot  be  forced  on  a  man. 
A  devise,  however,  being  prima  facie  for  the 
devisee's  benefit,  he  is  supposed  to  assent  to 
it,  until  he  does  some  act  to  show  his  dissent. 
The  law  presumes  tliat  he  will  assent,  until 
the  contrary  be  proved.  When  the  contrary, 
however,  is  proved,  it  shows  that  he  never 
did  assent  to  the  devise,  and  consequently 
that  the  estate  never  was  in  him.  I  cannot 
think  that  it  is  necessary  for  a  party  to  go 
through  the  form  of  disclaiming  in  a  couvt  of 
record,  nor  that  he  should  be  at  the  tronb  e 
or  expense  of  executing  a  deed  to  show  that 
he  did  not  assent  to  the  devise.  LTnless  some 
strong  authority  were  shown  to  that  effect,  I 
cannot  think  that  the  law  requires  either  of 
these  forms.  I  am  confirmed  in  tl:at  opinion 
by  the  case  of  Bonifaut  v.  Greenfield,  Cro. 
Eliz.  80."  In  that  case  the  renuniition  w;is 
by  deed,  and  it  was  claimed  that  was  insuf- 
ficient, and  that  a  disclaimer  in  a  court  of 
record  was  necessary.  All  of  the  judges 
agreed  that  the  disclaimer  by  deed  was  g  od, 
and  the  dictum  contained  in  the  opinion  of 
Holroyd  was  apparently  approved  by  the  other 
justices.  So  far,  then,  we  have  dictum 
against  dictum,  in  the  English  cases,  with 
the  Virginia  case  holding  a  writing  necessary. 
The  question  was  up  in  ^lassachusetts  in  the 
same  year  that  Doe  v.  Smyth  was  decided 
(i.  e.  182G).  Stebbins  v.  T^throp,  4  Pick.  43. 
It  was  there  held  that  nothing  short  of  an 
express  renunciation  could  be  tak-^n  notic^  of 
by  a  court  of  probate.  The  court  said:  ''Noth- 
ing   appears    amounting    to    a    renunciation. 


But,  if  this  were  doubtful,  the  question  is  n  t 
to  be  settled  in  the  court  of  probate.  The  re- 
spondent has  a  right  to  be  heard  on  this  point 
in  a  court  of  law,  and  he  cannot  be  so  hear  1 
if  the  grant  of  probate  should  be  revoked. 
The  most  that  appears  at  present  is  an 
intention  to  renounce,  and  even  this  is  not 
very  clear.  It  is  possible  that  the  intenton 
was  merely  to  impede  the  creditors  in  the  col- 
lection of  their  debts.  Until  the  legatees 
shall  actually  renouhi^p  their  legaces,  their 
assent  to  the  provisions  of  the  will  whi  h 
are  apparently  beneficial  to  them  will  be  pre- 
sumed. Townson  v.  Tickell,  3  Barn.  &  Aid. 
31.  If  they  should  persist  ill  the  intention  to 
renounce  the  estate,  the  probate  of  the  will 
will  not  restrain  them.  And  then  the  ques- 
tion wiU  be  fairly  raised  whether  this  can  be 
done  to  the  prejudice  of  creditors.  This  being 
the  light  in  which  we  view  this  point,  it  will 
not  be  necessary  to  determine  whether  the 
acts  of  the  devisees  will  in  law  amount  to  a 
renunciation.  It  is  sufficient  to  justify  tha 
proceedings  of  the  judge  of  probate  in  this 
particular  that  these  acts,  taken  together,— es- 
pecially the  acts  of  Miner  Stebbins,— are 
equivocal,  and  that  nothing  short  of  an  ex- 
press renunciation  can  be  taken  notice  of  in 
a  court  of  probate.  And  there  seems  no 
good  reason  why  the  fact  should  not  be  veri- 
fied by  the  record,  when  the  parties  are  pres- 
ent and  may  renounce  if  they  are  so  in- 
clined. No  doubt  a  devisee  may  disclaim  by 
deed  the  estate  devised,  as  was  decided  in 
the  case  of  Townson  v.  Tickell,  3  Barn.  & 
Aid.  31;  and  perhaps  he  may  disclaim  with- 
out being  subjected  to  the  expense  and 
trouble  of  executing  a  deed,  as  Holroyd,  J., 
seemed  to  think.  But  it  does  not  follow  that 
a  court  of  probate  shall  receive  evidence  of 
such  disclaimer,  and  most  certainly  not  when 
the  evidence  relates  to  acts  of  a  doubtful 
bearing.  In  the  case  of  Proctor  v.  Atkyns, 
1  Mass.  321,  it  was  decided  that  a  court  of 
probate  could  not  determine  upon  a  claim  set 
up  by  deed,  because  it  was  determinable  ex- 
clusively at  the  common  law.  The  same  rea- 
son applies  with  force  to  the  supposed  dis- 
claimer in  this  case."  In  Webster  v.  Oilman, 
1  Story,  499,  Fed.  Cis.  No.  17,33.j,  the  follow- 
ing appears:  "It  may  be  even  doubtful 
whether,  under  our  laws,  any  renunciation  or 
disclaimer  not  by  deed  or  matter  of  record 
would  be  an  extinguishment  of  the  right  of 
the  devisee.  But  at  all  events  it  should  be 
evidenced  by  some  solemn  act  or  acknowl- 
edgment in  writing,  or  by  some  open  and 
positive  act  of  renunciation  or  disclaimer 
which  will  prevent  all  future  cavil,  and  op- 
erate, in  point  of  evidence,  as  a  quasi  estop- 
pel." Here,  again,  the  question  was  not  de- 
cided. The  question  was  before  the  United 
States  circuit  court  again  in  Ex  parte  B^iUer,  2 
Story,  330.  Fed.  Cas.  No.  5,147,  and  again  it 
was  not  passed  upon.  The  court  said:  "As 
to  the  other  point,  there  is  no  doubt  that 
the  devisee  must  consent,  otherwise  the  title 
does  not  vest  in  him.     But  where  the  estate- 


RULE  IN  SHELLEY'S  CASE. 


219 


is  devised  absolutely,  and  without  any  trust  j 
or  incumbrances,  the  law  will  presume  it  to  1 
be  accepted  by  the  devisee,  because  it  is  for 
his  benefit;  and  some  solemn,  notorious  act  [ 
is  required  to  establish  his  renunciation  or 
disclaimer  of  it.  Until  that  is  done,  stabit 
presumptio  pro  veritate.  That  is  sufficiently 
shown  by  the  case  of  Townson  v.  Tiekell, 
3  Barn.  &  Aid.  31,  cited  at  the  bar,  and  the 
still  later  case  of  Doe  v.  Smyth,  6  Barn.  & 
C.  112.  Brown  v.  Wood,  17  Mass.  68,  and 
Ward  V.  Fuller,  15  Tick.  185,  manifestly  pro- 
ceeded upon  the  same  foundation.  Now,  in 
the  present  case,  there  is  no  pretense  to  say 
that  Ross  has  ever  renounced  or  disclaimed 
the  estate  devised  to  him.  The  statement  of 
fact  is  that  he  has  done  no  act  acccptin.:;^:  or 
declining  the  devise.  If  so,  then  the  pre- 
sumption of  law  is  that  he  has,  by  implica- 
tion, accepted  it,  since  it  gives  him  an  uncon- 
ditional fee."  The  case  of  Ward  v.  Fuller. 
15  Pick.  185,  went  no  further  than  to  hold 
that  a  devisee  before  entry  had  a  sufficient 
seisin  to  maintain  a  writ  of  riglit.  In  4  Kent, 
Comm.  p.  534,  it  is  said  that:  "An  estate 
vests,  under  a  devise,  on  the  death  of  the 
testator,  before  entry.  But  a  devisee  is  not 
bound  to  accept  of  a  devise  to  him  nolens 
volens,  and  he  may  renounce  the  gift,  by 
which  act  the  estate  will  descend  to  the 
heir,  or  pass  in  some  other  direction  under 
the  will.  The  disclaimer  and  renunciation 
must  be  by  some  unequivocal  act,  and  it  is 
left  undecided  whether  a  verl«l  disclaimer 
will  be  sufficient,  and  some  judges  have  held 
that  it  may  be  by  a  verbal  renunciation. 
Perhaps  the  case  will  be  governed  by  cir- 
cumstances." See,  also,  Perry  v.  Hale,  44  N. 
H.  304. 

From  the  foregoing,  we  conclude  that  an  ac- 
ceptance  should  be   presumed   in   this   case, 
which   presumption   may  be   overthrown    by 
acts  inconsistent  with  acceptance.     The  only 
evidence  here  is  the  purchase  of  tax  titles, 
and  procuring  and  recording  tax  deeds  of  the 
premises,  and  the  conveyance,  by  full  war- 
ranty deed,  within  two  years  after  Betsey 
Casler's  death,  of  the  premises  devised.     The 
inference  is  strong  that  Henry  Casler's  design 
in  obtaining  the  deeds  was  to  acquire  a  bet- 
ter   title   than    that    conveyed   by    the    will, 
either  because  of  some  inherent  defect  in  the 
latter,   or  from  a  desire  to   obtain   the   fee. 
There  is  perhaps  room  for  the  suspicion  that 
his  mother,  Betsey  Casler,  permitted  this,  as 
the  plaintiff's  counsel  contends,  or  that  Henry 
accomplished  it  without  her  knowledge,  but 
in  either  case  it  tended  to  show  a  desire  to 
obtain  a  better  title  than  he  then  had.     It 
does  not  necessarily  follow  that  he  was  will- 
ing  to  disclaim   a  valid   life   estate   for   his 
chances  vmder  a  tax  title  wliich,  if  invalid, 
miglit  compel  him  to  share  his  life  estate  with 
his   brothers  and   sisters.     Again,   the   testi- 
mony of  the  witness  Bear  that  he  found  the 
land  advertised  in  the  paper,  and  bid  it  in, 
tends  to  show  that  the  sale  was  not  the  re- 
sult  of  collusion   or  fraud,   and   that   Henry 


Casler  obtained  the  tax  title  from  Bear  to 
protect  his  mother  as  well  as  himself.  This 
testimony  should  not  have  been  stricken  out 
upon  plaintiff's  motion.  If  the  son,  Henx-y 
Casler,  never  accepted  the  devise,  it  is  an 
end  of  the  case  upon  this  record,  entitling  the 
defendants  to  a  verdict,  inasmuch  as  the  tax 
deeds  are  prima  facie  valid,  and  conveyed  the 
fee. 

But,  if  Henry  Casler  accepted  the  devise,  it 
becomes  necessary  to  inquire  whether  he  can 
set  up  his  tax  deeds  against  the  remainder- 
men.    This  is  said  to  depend  upon  the  ques- 
tion whether  he  owed  a  duty  to  them  to  pay 
the  taxes,  or  preserve  the  estate  for  them, 
analogous  to  the  duty  which  his  mother  owed 
to  him  and  them.     We  have  found  no  case 
upon  all  fours  with  this,  and  we  doubt  if  it 
can  be  said  that  the  law  imposes  any  such 
duty  upon  the  second  life  tenant,  during  the 
tenancy  of  his  predecessor,  but  we  think  it 
does  not  necessarily  turn  upon  a  duty  to  pay. 
While  he  was  under  no  obligation  to  preserve 
the  estate,  if  he  chose  to  do  so  that  he  might 
reap  the  benefit  of  the  devise,  he  should  be 
content  to  look  to  the  occupant,  whose  duty 
it  was  to  pay  them,  for  reiuiliursemeut,  or, 
if  not,  he  could  expect  no  more  than  contri- 
bution   from    the    other    remainder-men,    to 
whose  benefit,  as  well  as  his  own,  such  pay- 
ment inured.     It  would  be  inequitable  to  per- 
mit him  to  claim   title  under   such  circum- 
stances, where  he  took  under  the  same  will 
that  gave  him  an  estate,  thereby  recognizing 
their  right.     Good  faith  towards  the  testator 
should  forbid  such  an  attempt  to  defeat  his 
purpose.     Were  this  claim  to  be  sustained,  it 
would  make  it  easy  for  two  life  tenants,  by 
collusion,  to  defeat  the  remainder-men.  under 
circumstances   like   these.     It    may    be   said 
that  this  could  be  done  by  the  mere  disclaim- 
er, but  tliis  is  a  mistake.     See  How.  Ann.  St. 
.  §  5548.     We  are  cited  to  Blackwood  v.  Van 
Vleit,  30  Mich.  118,  and  Sands  v.  Davis,  40 
Mich.  14,  to  sustain  the  claim  that  Henry  eas- 
ier was  under  no  disability  as  a  claimant  of 
the  fee  under  the  tax  deed.     The  former  was 
a  case  where  one  who  went  into  possession 
before  the  tax  levy  was  held  not  to  be  pre- 
cluded from  making  and  relying  upon  a  pur- 
chase of  land  at  tax  sale.     In  Sands  v.  Davis 
the  question  arose  between  tenants  in  com- 
mon.    In   that  case  one  bought  a   tax  title 
that  was  outstanding  at  the  time  of  the  pur- 
chase  of   his   interest   in  the   premises,   and 
therefore  which  he  owed  no  duty,  to  the  state 
or  his  co-tenants,  to  pay.  and  it  was  held  that 
he  might  set  up  such  title  against  his  co-ten- 
ants.   Both  of  these  cases  recognize  the  propo- 
sition that  one  asserting  a  tax  title  may  be  un- 
der a   disability, , owing   to   his   relations   to 
others    claiming    interests   in    the    land.     In 
Blackwood  v.  Van  Vleit  it  is  said.   "It  was 
not  claim(Hl  in  the  case,  so  far  as  the  record 
shows,  that  there  were  contract  or  other  re- 
lations   between    Blackwood   and    Van    Vleit 
that  would  preclude  the  latter  from  buying 
the  former's  land  for  delinquent  taxes."     In 


ESTATES   IN   REAL  PROPERTY. 


Sands  v.  Davis,  Campbell,  C.  J.,  uses  the  fol- 
lowing language:  "If  Sands  had  gone  into 
possession  by  the  aid  of  the  other  tenants,  or 
in  recognition  of  their  rights,  he  might  in 
that  way,  perhaps,  have  incurred  some  duties 
towards  them.  But  he  went  in  as  a  stran- 
ger to  their  claims,  under  a  claim  which  de- 
nied their  existence  or  validity.  He  became 
liable  to  an  action  of  ejectment  the  moment 
he  assumed  possession.  We  see,  therefore, 
no  reason  why  he  could  not  then  or  there- 
after, as  well  as  he  could  have  done  it  be- 
fore, purchase  a  title  which  was  at  that 
time  adverse  to  the  holders  of  the  whole  origi- 
nal title.  The  case  of  Blackwood  v.  Van 
Vleit,  30  Mich.  118,  holds,  in  conformity  with 
these  views,  that  there  can  be  no  estoppel 
against  purchasing  tax  titles,  except  against 
one  who  had  a  duty  to  pay  the  tax  or  remove 
the  burden."  There  is  abundant  authority 
that  a  tenant  in  common,  whose  duty  it  is  to 
pay  a  portion  of  the  taxes, .cannot  acquire  a 
title,  as  against  his  co-tenant,  by  purchase  at 
a  tax  sale  for  the  entire  tax.  Dubois  v. 
Campau,  24  Mich.  300,  and  notes.  Wood, 
Landl.  &  Ten.  §  54,  says,  "In  the  absence  of 
any  reservation  of  rent,  or  other  provision 
in  the  lease  or  conveyance  providing  there- 
for, a  tenant  for  life,  as  between  himself  and 
the  reversioner,  is  bound  to  pay  the  taxes  as- 
sessed upon  the  premises;  and  if  he  fails  to 
do  so,  and  they  are  sold  therefor,  and  the  ten- 
ant becomes  the  purchaser,  he  cannot  claim 
a  title  in  fee  against  the  reversioner."  See, 
also.  Cairns  v.  Chabert,  3  Edw.  Ch.  312; 
Smith  V.  Blindbury,  06  Mich.  323,  33  N.  W. 
391;  Patrick  v.  Sherwood.  4  Blatchf.-  112, 
Fed.  Cas.  No.  10,804;  McMillan  v.  Robbins, 
.5  Ohio,  28;  Pike  v.  Wassell.  94  U.  S.  711; 
Sidenberg  v.  Ely,  90  N.  Y.  257;  Varney  v. 
Stevens,  22  Me.  331;  Prettyman  v.  Walston, 
34  111.  175;  Hituer  v.  Ege,  23  Pa.  St.  305. 
Some  of  these  cases  hold  tliat  where  the  life 
tenant  is  compelled  to  make  permanent  bet- 
terments, or  to  pay  off  incumbrances  to  pre- 
vent a  forfeiture,  he  may  enforce  contribution 
against  the  remainder-men,  to  the  extent  of 
their  interest  in  the  land.  Cairns  v.  Chabert, 
3  Edw.  Ch.  312;  Foster  v.  Hilliard,  1  Story, 
77,  Fed.  Cas.  No.  4,972;  Daviess  v.  Myers,  13 
B.  Mon.  512;  Bell  v.  New  York,  10  Paige, 
49;  Estabrook  v.  Hapgood,  10  Mass.  313;  At- 
kins v.  Kron,  8  Ired.  Eq.  1.  Thus  it  appears 
that  while  the  life  tenant  in  possession  may 
be  under  no  legal  obligation  to  pay  an  incum- 
brance, and  therefore  owes  no  duty  to  the 
remainder-man,  if,  to  prevent  a  forfeiture  of 
his  estate,  he  does  pay  it,  he  has  a  claim 
against  the  interest  of  the  remainder-man. 
Either  party  may  buy  in  the  incumbrance, 
but  cannot  hold  it  to  the  exclusion  of  the 
other,  who  is  willing  to  cofttribute  his  share 
of  the  amount  paid  for  the  purchase.  See 
cases  cited,  and  Insurance  Co.  v.  Bulte,  45 
Mich.  122,  7  N.  W.  707;  Whitney  v.  Salter 
(Minn.)  30  N.  W.  755.  In  this  case  it  was 
not  clear  that  any  portion  of  the  incumbrance 
was  chargeable  to  the  life  tenant,  yet  it  vyas 


said  that  he  should  be  regarded  as  having 
made  the  purchase  for  the  joint  benefit  of 
himself  and  the  reversioner  or  remainder- 
man,—citing  1  Washb.  Real  Prop.  90;  Biss. 
Est.  26;  Law  Lib.  248;  Cooley,  Tax'n  (2d 
Ed.)  500-509.  We  see  no  reason  why  this 
doctrine  should  not  apply  equally  to  the 
devisee  of  a  life  estate  not  in  possession,  and 
can  see  no  difference  in  principle.  And  we 
think  the  rule  as  applicable  to  taxes  as  to 
any  other  incumbrance.  Therefore  we  think 
the  right  to  assert  these  deeds  against  the 
remainder-men  hinges  on  the  acceptance  or 
renunciation  by  Henry  Casler  of  the  devise. 

Counsel  for  defendants  attack  plaintiff's  ti- 
tle, claiming  that  the  quitclaim  deeds  given 
by  the  heirs  of  Henry  Casler  before  his  death 
conveyed  no  interest,  for  the  reason  that 
there  "are  no  heirs  to  the  living."  But  the 
statute  is  a  sulficient  answer.  The  remain- 
der was  a  future  estate,  which  the  statute 
(How.  Ann.  St.  §  5551)  declares  to  be  de- 
scendible, devisable,  and  alienable  in  the 
same  manner  as  estates  in  possession. 

Counsel  also  contend  that  the  devise  is  void 
under  How.  Ann.  St.  §  5531,  which  reads  as 
follows:  "The  absolute  power  of  alienation 
shall  not  be  suspended  by  any  limitation  or 
condition  whatever,  for  a  longer  period  than 
during  the  continuance  of  two  lives  in  being 
at  the  creation  of  the  estate,  except  in  the 
single  case  mentioned  in  the  next  section." 
We  think  that  statute  has  no  application,  for 
the  power  of  alienation  was  suspended  for 
the  period  of  two  lives  in  being  only,  viz. 
Betsey  Casler  and  Henry  Casler.  See,  also, 
section  5535. 

Plaintiff's  title  is  also  attacked  upon  the 
ground  of  want  of  jurisdiction  in  the  probate 
court  to  admit  the  will  to  probate,  but  we 
think  this  question  is  foreclosed  by  the  stipu- 
lation that  said  will  was  duly  probated,  etc 

There  is  a  further  question  in  the  case 
which  is  discussed  by  counsel  for  the  defend- 
ants. There  is  nothing  to  show  that  the  will 
was  ever  recorded,  while  the  tax  deeds  were 
promptly  placed  upon  record.  The  latter  fact 
has  significance  upon  the  subject  of  renunci- 
ation, because,  if  Henry  Casler  was  claiming 
under  the  will,  there  was  no  occasion  for  his 
recording  such  deeds.  Again,  the  defendants 
are  not  shown  to  have  had  any  actual  or 
constructive  notice  of  the  will,  or  the  rights 
of  any  of  the  parties  under  it.  He  was  there- 
fore apparently  a  bona  fide  purchaser,  rely- 
ing upon  the  record  of  the  tax  deeds,  which 
was  the  only  title  appearing  of  record,  in 
Henry  Casler. 

As  foreshadowed,  our  conclusion  is  that  it 
was  a  question  for  the  jury  to  defermine, 
whether  Henry  Casler  accepted  or  renounced 
the  devise,  and  that  it  was  error  to  direct  a 
verdict  for  the  plaintiff.  The  judgment  will 
be  reversed,  and  a  new  trial  ordered. 

LONG,  C.  J.,  and  GRANT  and  MOORE,  JJ.,, 
concurred.  MONTGOMERY,  J.,  concurred  in 
the  result. 


EXECUTORY  DEVISES. 


221 


HCJPKINS  V.  IIUPKIXS. 

(Cas.  t.  Talb.  44.) 
Court  of  Chancery,    1734. 

The  testator,  Mr.  Hopkius,  by  his  will,  de- 
vises his  real  estate  to  trustees  aud  their  heirs, 
to  the  use  of  them  and  their  heirs,  in  trust  for 
Samuel  Hopkins  (the  plaintiff's  only  son,  which 
lilaintiff  is  heir  at  law  to  the  testator)  for  life; 
and  from  and  after  his  decease,  in  trust  for  the 
tirst  and  every  other  son  of  the  body  of  the 
said  Samuel,  lawfully  to  be  begotten,  aud  the 
heirs  male  of  the  body  of  every  such  son;  and 
for  want  of  such  issue,  in  case  the  said  John 
Hopkins,  the  plaintiff,  should  have  any  other 
son  or  sons  of  his  bodj'  lawfully  begotten,  then 
in  trust  for  all  and  every  such  son  and  sons  re- 
spectively and  successively,  for  their  respec' 
tive  lives,  with  the  like  remainders  to  their  sev- 
eral sons,  with  the  like  remainders  to  the  heirs 
male  of  the  body  of  every  such  son,  as  before 
limited  to  the  issue  male  of  the  said  Samuel 
Hopkins;  and  for  want  of  such  issue,  in  trust 
for  the  first  and  every  other  sou  of  the  body  of 
Sarah,  the  said  John  Hopkins'  eldest  daughter, 
lawfully  to  be  begotten,  with  like  remainders  to 
the  sous  of  John  Hopkins'  other  daughters;  and 
for  want  of  such  issue,  then  in  trust  for  the 
first  and  every  other  son  of  his  cousin  Anue 
Dare  (wife  of  Francis  Dare)  lawfully  to  be  be- 
gotten, with  like  remainders  to  the  heirs  male 
of  the  body  of  every  such  son  of  the  said  Anne 
Dare;  aud  for  default  of  such  issue,  then  in 
trust  for  his  own  right  heirs  forever.  Then 
come  two  provisos;  the  one  whereby  every 
person  that  should  come  into  possession  of  his 
estate,  was  to  take  his  name,  and  bear  his  arms; 
the  other  is  in  these  words:  "Provided  also, 
and  it  is  my  will,  that  none  of  the  persons,  to 
whom  the  said  estates  are  hereby  limited  for 
life,  shall  be  in  the  actual  possession  thereof, 
and  in  the  enjoyment  of  the  rents  and  profits, 
or  of  any  greater  or  other  part  thereof,  than 
as  hereinafter  is  mentioned,  until  he  or  they 
shall  have  respectively  attained  his  or  their 
ages  of  twenty-one  years;  and  in  the  mean 
time,  and  until  his  or  their  attaining  to  such 
age,  my  trustees  and  their  heirs  and  executors 
shall  make  such  allowances  thereout,  for  the 
handsome  and  liberal  maintenance  and  educa- 
tion of  such  person  and  persons  respectively,  as 
they  shall  think  suitable  and  agreeable  to  his 
estate  and  fortune;  and  it  is  my  will,  that  the 
overplus  of  the  said  rents  and  profits,  over  and 
above  the  annual  allowances,  or  such  part  there- 
of as  shall  remain  after  all  my  debts,  legacies, 
and  funeral  expenses  shall  be  first  paid  (with 
the  payment  whereof  I  have  charged  my  real 
estate,  in  case  my  personal  estate  shall  not  be 
sufficient  for  those  purposes),  do  go  to  such  i>er- 
sons  as  shall  first  be  entitled  unto,  or  come  into 
the  actual  possession  of  my  said  real  estate,  ac- 
cording to  this  my  will." 

Samuel  Hopkins  died  in  the  testator's  life- 
time, Avithout  issue;  and  some  time  after,  the 
testator  died  without  any  alteration  made  of  his 
will;  nor  had  John  Hopkins  any  other  son; 
nor    were    any    of    the   other    remaindermen    in 


esse  at  the  testator's  death,  except  Dare,  son  of 
Anne  Dare. 

The  first  question  was,  whether  by  Samuel's 
death  in  the  testator's  lifetime,  the  several  lim- 
itations between  him  and  Dare  were  not  be- 
come void;  there  being  no  particular  estate  to 
support  them  as  remainders,  by  reason  of  Sam- 
uel's death  in  the  testator's  lifetime,  who  was 
to  take  the  first  estate;  nor  nobody  capable  of 
taking  at  the  testator's  death  but  the  sou  of 
Anne  Dare,  who  thereby  claimed  the  whole  in- 
terest presently?  Or  whether  these  intermedi- 
ate hmitations  should  not  inure  by  way  of  ex- 
ecutory devise  to  any  other  son  he  might  here- 
after have? 

The  second  question  was,  in  case  the  limita- 
tion to  the  other  sons  of  John  Hopkins  was  to 
be  looked  upon  as  an  executory  devise,  what 
should  become  of  the  rents  and  profits  in  th(i 
mean  time? 

The  cause  was  first  heard  at  the  rolls,  and 
there  decreed  to  be  an  executory  devise. 

Serjeant  Eyre  and  Peere  Williams,  for  plain- 
tiff. The  Attorney  General,  The  Solicitor  Gen- 
eral, Mr.  Verney,  Mr.  Fazakerley,  Mr.  Bootle, 
and  Mr.  Strange,  contra. 

TALBOT,  Lord  Ch.  Two  questions  have 
been  made  upon  this  will:  The  first  is,  wheth- 
er this  limitation  to  the  first  and  every  other 
son  of  John  Hopkins  can  now  take  effect  as  an 
executory  devise?  or  whether  it  shall  be  taken 
as  a  contingent  remainder,  and  consequently 
void  for  want  of  a  particular  estate  to  support 
it,  by  reason  of  Samuel's  death  in  the  testator's 
lifetime,  and  that  John  Hopkins  had  no  son  in 
esse  at  the  testator's  death,  in  whom  the  re- 
mainder might  vest?  The  next  question  is,  in 
case  the  limitation  be  taken  as  an  executory  de- 
vise, what  is  to  become  of  the  rents  and  profits 
of  this  estate  until  John  Hopkins  has  a  son? 
As  to  the  first,  I  think  it  impossible  to  cite  any 
authorities  in  point.  None  have  been  cited.  It 
seems  to  be  allowed,  that  if  things  had  stood 
at  the  testator's  death  as  they  did  at  the  time 
of  the  making  of  the  will,  tlie  limitation  in 
question  would  have  been  a  remainder,  by  rea- 
son of  Samuel's  estate,  which  would  have  sup- 
|)orted  it.  So  is  the  case  of  Purefoy  v.  Rogers, 
2  Saund.  380,  oSS,  and  limitations  of  this  kind 
are  never  construed  to  be  executory  devises  but 
where  they  cannot  take  effect  as  remainders. 
So  on  the  other  hand,  it  is  likewise  clear,  that 
had  there  been  no  such  limitation  to  Samuel 
and  his  sons,  the  limitation  must  have  been  a 
good  executory  devise,  there  being  no  anteced- 
ent estate  to  support  it;  and  consequently  not 
able  to  inure  as  a  remainder;  so  that  it  must 
be  the  intervening  accident  of  Samuel's  death  in 
the  testator's  lifetime,  upon  which  this  ix)iut 
must  depend.  And  as  to  that,  I  am  of  opinion 
that  the  time  of  making  the  will  is  principally 
to  be  regarded  in  respect  to  the  testator's  intent. 
If  an  infant  or  feme  covert  make  a  will,  and 
do  not  act  either  at  full  age  or  after  the  cover- 
ture determined,  to  revoke  this  will,  yet  the  will 
is  void,  because  the  time  of  making  is  principal- 
ly to  be  considered;    and  the  law  judges  them 


■222 


ESTATES  IN  REAL   PROPERTY. 


incapable  of  disposing  by  will  at  those  times. 
The  same  reason  holds  in  the  case  of  a  devise 
of  all  the  lands  which  a  man  has  or  shall  have 
at  the   time   of  his   death,   no   after-purchased 
lands  shall  pass  without  a  republication,  which 
was  the  case  of  Bunter  v.  Cook,  1  Salk.  237,  be- 
cause the  time  of  the  will  made  is  chiefly  to  be 
regarded.     Indeed  it  is  possible  that  subsequent 
things  may  happen  to  alter  the  testator's  intent; 
but  unless  that  alteration  be  declared,  no  court 
can  talie  notice  of  his  private  intent,  not  mani- 
fested by  any  revocation  of  the  former;    though 
these  subsequent  accidents  may   and  must,   in 
many  cases,  have  an  operation  upon  the  will; 
as  in  the  case  of  Fuller  v.  Fuller,  Cro.  Eliz.  422, 
and  Hutton  v.  Simpson,  2  Yern.  722.     And  in 
the  Lord  Landsdowu's  Case,  10  Mod.  96,  the  first 
limitation  did  not  expire  by  effluxion  of  time,  but 
by  the  intervenmg  alteration  of  things  between 
the  time  of  the  will  made  and  the  testator's  death; 
and  the  words  there,  for  want  of  such  issue, 
were  not  construed  to  create  another  estate  tail 
to  postpone  the  limitation,  but  only  to  convert 
the   second   estate  to  the   precedent  limitation. 
So  we  see,  that  in  these  cases  the  method  of  the 
courts  is  not  to  set  aside  the  intent  because  it 
cannot  take  effect  so  fully  as  the  testator  de- 
sired;   but  to  let  it  work  as  far  as  it  can.    And 
if,  in  this  case,  we  consider  it  as  an  executory 
devise,  the  intent  will  be  served  in  case  John 
Hopkins  has  a  second  son;    but  if  it  is  taken  as 
II  remainder,  the  intent  plainly  appearing  that 
a  second  son  of  John  Hopkins  should  take,  is 
quite  destroyed;    there  being  no  precedent   es- 
tate to  support  it  as  a  remainder.     The   very 
being  of  executory  devises  shows  a  strong  in- 
clination, both  in  the  courts  of  law  and  equity, 
to  support  the  testator's  intent  (Doe   v.   Fon- 
nereau,   2  Doug.  487),  as  far  as  possible;    and 
though  they  be  not  of  ancient  date,  yet  they  are 
of  the  same  nature  with  springing  uses,  which 
are  as  old  as   uses  themselves.      I   can   see   no 
difference  between  this  case  and  the  others  of 
like  nature,  that  have  been  adjudged.     And  if 
such  a  construction  may  be  made  consistently 
with  the  rules  of  law,  and  agreeable  to  the  tes- 
tator's intent,  it  would  be  very  hard  not  to  suf- 
fer it  to  prevail.     In  Pay's  Case,  Cro.  Eliz.  878, 
had  the  testator  lived  to  Michaelmas,  the  lim- 
itation   had    been   a    remainder;    and    if    a   re- 
mainder in  its  first  creation  does,  by  any  subse- 
quent   accident,    become   an    executory    devise, 
why  should  it  not  be  good  here,  upon  the  au- 
thority  of   that   case,   where   by   the   testator's 
death    before   Michaelmas,   what   would    other- 
wise have  been   a  remainder,   was   held   to   be 
good  by  way  of  executory  devise?    I  think,  that 
in  this  case  the  limitation  would  operate  as  an 
executory  devise,  if  it  was  of  a  legal  estate;  and 
therefore  shall  do  so  as  a  trust,  the  rules  being 
the  same. 
The  next  question  is,  what  is  to  become  of  the 


rents  and  profits,  in  case  this  be  taken  to  be 
an  executory  devise,  until  the  birth  of  a  son  to 
John   Hopkins?     And   this   must  depend   upon 
the  wording   of  the   proviso.     The   words  are: 
"That  none  of  the  persons  to  whom  the  estates 
are  limited  shall  be  in  the  actual  possession  and 
enjoyment  of  the  rents  and   profits  until  they 
shall  respectively  attain  the  age  of  twenty-one; 
and  that  in  the  mean  time  the  trustees   shall 
make   such    allowance   thereout   as   they    shall 
think    suitable;    and    then    he    wills,    that    the 
overplus  of  such  rents  and  profits  do  go  to  such 
persons  as  shall  be  entitled  unto,  and  come  to 
the  actual  possession   of  his  estate,"   &c.     By 
which  words  none  are  affected  but  such  as  are 
to  come  to  the  estate  under  the  limitations.     It 
restrains  them  from  having  anything  to  do  with 
the  estate  till  they  attain  the  age  of  twenty-one, 
and  provides  the  surplus   (beyond  their  allow- 
ance) to  be  laid  up  for  them;    but  here  is  no 
provision  made  what  shall  become  of  those  rents 
and  profits  until  a  son  be  born.     The  words  in 
the  mean  time  have  been  differently  construed; 
and  it  was  said,  that  there  was  no  certain  ter- 
minus a  quo,   from  whence  they  should  begin. 
Had  Samuel  lived,  the  terminus  must  have  been 
from  the  time  of  the  limitation  taking  place; 
and  so  it  must  be  toties  quoties  any  come  to  be 
entitled  to   this   estate   under  the   several   lim- 
itations;   but  until  somebody  is  in  esse  to  take 
under  this  executory  devise,  the  rents  and  prof- 
its must  be  looked  upon  as  a  residue  undisposed 
of,   and   consequently   must   descend   upon    the 
heir-at-law;    the  case  being  the  same  where  the 
whole  legal  estate  is  given  to  the  trustees,  and 
but  part  of  the  trust  disposed  of,  as  in  this  case; 
and  where  but  part  of  the  legal  estate  is  given 
away,  and  so  the  residue  undisposed  of,  the  le- 
gal  estate  descends   upon   the   heir-at-law.      So 
it  was  held  by  the  Lord  King  in  the  case  of 
Lord  and  Lady  Hertford  v.  Lord  Weymouth,— 
which  shows  that  equity  follows  the  law. 

One  objection  indeed  has  been  made,  which 
is,  that  the  testator  having  in  this  case  devised 
another  estate  to  John  Hopkins,  his  heir-at-law, 
can  never  be  supposed  to  have  intended  him 
this  surplus.  And  to  warrant  that  objection, 
the  ease  of  North  v.  Crompton,  1  Oh.  Cas.  196, 
has  been  cited.  I  answer,  that  in  these  cases 
the  heir  does  not  take,  by  reason  of  the  testa- 
tor's intent  being  one  way  or  the  other;  but 
the  law  throws  it  upon  him:  and  wherever  the 
testator  has  not  disposed  (be  his  intent  that 
the  heir  should  take  or  not  take),  yet  still  he 
shall  take,  for  somebody  must  take;  and  none 
being  appointed  by  the  testator,  the  law  throws 
it  upon  the  heir. 

And  so  afiirmed  the  decree,  and  ordered  the 
personal  estate  (which  was  of  very  great  value) 
to  be  laid  out  in  land,  and  settled  to  the  same 
uses  as  the  real  estate,  according  to  the  direc- 
tion of  the  will. 


FUTURE  USES. 


223 


WYMAN  V.  BROWN  et  al.i 

(50  Me.  139.) 

Supreme  Judicial  Court  of  Maine.     1863. 

D.  D.  Stewart,  for  demandant.  G.  W.  Whit- 
ney, for  tenants. 

WALTON,  J.  *  *  *  Another  question 
raised  in  this  case  is,  whetlier  the  deed  from 
Mrs.  Brown  to  Oliver  S.  Nay  was  valid.  The 
objection  to  it  is,  that  it  purports  to  convey  a 
freehold  estate  to  commence  in  futuro;  and 
such  is  its  effect,  for  by  its  terms  Mrs.  Brown 
was  "to  have  quiet  possession,  and  the  entire 
income  of  the  premises  until  her  decease." 

Deeds  in  which  grantors  have  reserved  to 
themselves  estates  for  life  are  believed  to  be 
very  common  in  this  state;  and  whether  or 
not  such  deeds  are  valid  is  certainly  a  very 
important  question,  and  ought  to  be  authorita- 
tively decided. 

It  was  a  principle  of  the  old  feudal  law  of 
England  that  there  should  always  be  a  known 
owner  of  every  freehold  estate,  and  that  the 
freehold  should  never,  if  possible,  be  in  abey- 
ance. This  rule  was  established  for  two  rea- 
sons: (1)  That  the  superior  lord  might  know 
on  whom  to  call  for  the  military  services  due 
from  every  freeholder,  as  otherwise  the  de- 
fence of  the  realm  would  be  weakened.  (2) 
That  every  stranger  who  claimed  a  right  to  any 
lands  might  know  against  whom  to  bring  his 
suit  for  the  recovery  of  them;  as  no  real  ac- 
tion could  be  brought  against  any  one  but  the 
actual  tenant  of  the  freehold.  Consequently, 
at  common  law,  a  freehold  to  commence  in 
futuro  could  not  be  conveyed,  because  in  that 
case  the  freehold  would  be  in  abeyance  from 
the  execution  of  the  conveyance  till  the  future 
estate  of  the  grantee  should  vest.  And  it  is 
laid  down  in  unqualified  terms  in  several  cases 
in  Massachusetts,  and  in  one  in  this  state,  that 
an  estate  of  freehold  cannot  be  conveyed  to 
commence  in  futuro  by  a  deed  of  bargain  and 
sale,  which  owes  its  validity  to  the  statute  of 
uses,  and  not  to  the  common  law. 

But  the  doctrine,  that  freehold  estates  to 
commence  in  futuro  cannot  be  conveyed  by 
deeds  of  bargain  and  sale,  since  the  passage 
of  the  statute  of  27  Hen.  VIII.  c.  10,  commonly 
called  the  "Statute  of  Uses,"  is  clearly  errone- 
ous. It  is  clear  that,  at  common  law,  such 
conveyances  could  not  be  made;  and  it  is  equal- 
ly clear  that,  by  virtue  of  the  statute  of  uses, 
such  conveyances  mar  be  made.  Prior  to  the 
reigji  of  Henry  VIII.,  real  estate  covild  be  so 
held  that  one  person  would  have  the  legal  title, 
and  another  the  right  to  the  use  and  income. 
To  obviate  many  supposed  inconveniences 
which  had  grown  out  of  this  practice  of  sepa- 
rating the  legal  title  from  the  use,  the  statute 
of  uses  was  passed,  by  which  it  was  enacted 
that  the  estates  of  the  persons  so  seized  to  uses 
should  be  deemed  to  be  in  them  that  had  the 
use,  in  such  quality,  manner,  form,  and  condi- 
tion, as  they  had  before  in  the  use.     It  will  be 

I  Irrelevant  parts  omitted. 


noticed  that  the  effect  of  this  statute  was  to 
annex  the  legal  title  to  the  use,  so  that  they 
could  not  be  separated.  Mr.  Cruise  says,  that 
when  this  statute  first  became  a  subject  of  dis- 
cussion in  the  courts  of  law,  it  was  held  by  the 
judges  that  no  uses  should  be  executed  that 
were  limited  against  the  rules  of  the  common 
law;  but  that  this  doctrine  was  not  and  could 
not  be  adhered  to,  for  the  statute  enacts  that 
the  legal  estate  or  seizin  shall  be  in  them  that 
have  the  use,  in  such  quality,  manner,  form, 
and  condition,  as  they  before  had  in  the  use; 
that  chancery  having  permitted  uses  to  com- 
mence in  futuro  and  to  change  from  one  person 
to  another,  by  matter  ex  post  facto,  the  courts 
of  law  were  obliged  to  admit  of  limitations  of 
this  kind.  The  statute  did  not  attempt  to  lim- 
it or  control  the  doctrine  of  uses;  it  simply  de- 
clared that  where  the  use  was,  there  the  legal 
estate  should  be  also.  The  result  was  that  it 
opened  several  new  modes  of  conveying  legal 
estates  wholly  unknown  to  the  common  law; 
for  whatever  would  convey  the  use  and  income 
of  real  estate  before  its  passage,  would,  by  vir- 
tue of  the  statute,  convey  the  legal  estate  aft- 
erwards. It  will  thus  be  seen  that  convey- 
ances through  the  medium  of  the  statute  or 
uses  are  effected  in  this  way:  The  owner  of 
an  estate  in  lands,  for  a  consideration  either 
good  or  valuable,  agrees  that  another  shall 
have  the  use  and  income  of  it,  and  the  statute 
steps  in  and  annexes  the  legal  title  to  the  use, 
and  thus  the  cestui  que  use  becomes  seized  of 
the  legal  estate  in  the  same  manner  as  before 
the  statute  he  would  have  been  seized  of  the 
use.  The  argument,  presented  in  a  syllogistic 
form,  is  this:  Since  the  statute  of  uses,  free- 
holds can  be  conveyed  in  any  manner  that  uses 
were  conveyed  before  its  passage.  Before  its 
passage,  uses  were  conveyed  to  commence  in  fu- 
turo; therefore,  freeholds  may  be  conveyed  to 
commence  in  futuro  since  its  passage.  It  must 
be  remembered,  however,  that  neither  legal  es- 
tates nor  uses  can  be  so  limited  as  to  create 
perpetuities.  If  future  estates  are  so  limited 
as  to  take  effect  in  the  lifetime  of  one  or  more 
persons  living,  and  a  little  more  than  twenty- 
one  years  after,  the  rule  against  perpetuities 
will  not  be  violated.  We  will  refer  to  a  few 
leading  authors: 

Mr.  White,  a  very  learned  English  writer,  in 
one  of  his  additions  to  the  text  of  Mr.  Cruise, 
says:  "By  executory  devise  and  conveyances 
operating  by  virtue  of  the  statute  of  uses,  free- 
hold estates  may  be  limited  to  commence  in 
futuro."     1  Greenl.  Cruise,  tit.  1,  §  3G. 

Mr.  Chitty,  after  stating  that  by  a  common 
law  conveyance,  a  freehold  to  commence  in  fu- 
turo could  not  be  conveyed,  continues:  "But 
deeds  operating  under  the  statute  of  uses,  such 
as  bargain  and  sale,  covenant  to  stand  seized, 
or  a  conveyance  to  uses,  or  even  a  devise,  may 
give  an  estate  of  freehold  to  commence  in  fu- 
turo." 1  Chit.  Gen.  Prac.  306;  2  Bl.  Comm. 
144,  note  6. 

Mr.  Sugdcn  says:  "A  bargain  and  sale  to 
the  use  of  D.  after  the  death  of  S,  is  good," 
Gilb.  Uses  (Sugd.  Ed.)  163. 


224 


ESTATES  IN  REAL   PROPERTY. 


Mr.  Cornish:  "By  a  bargain  and  sale,  or  cov- 
enant to  stand  seized,  a  freehold  may  be  cre- 
ated in  future."      Corn.  Uses,  44. 

Chancellor  Kent:  "A  person  may  covenant 
to  stand  seized,  or  bargain  and  sell,  to  the  use 
of  another  at  a  future  day."  4  Kent,  Comm. 
298. 

Mr.  Archbold:  "Deeds  acting  under  the  stat- 
ute of  uses,  such  as  bargain  and  sale,  cove- 
nant to  stand  seized,  or  a  conveyance  to  uses, 
or  even  a  devise,  may  give  an  estate  of  free- 
hold to  commence  in  futuro."  Note  to  2  Bl. 
Comm.  16G. 

In  a  note  to  the  5th  American  edition  of 
Smith's  Leading  Cases  (volume  2,  p.  451),  aft- 
er noticing  the  Massachusetts  cases,  in  which 
it  is  held  that  a  freehold  to  commence  in  fu- 
turo cannot  be  created  by  a  deed  of  bargain 
and  sale,  the  learned  editors  say:  "It  is  un- 
doubtedly true  that  such  limitations  are  bad 
at  common  law;  but  it  seems  equally  well  set- 
tled that  they  are  good  in  deeds  operating  un- 
der the  statute  of  uses, "  whether  the  use  be 
raised  on  a  pecuniary  consideration  or  on  blood 
or  marriage.  The  point  is  so  held  in  England, 
and  has  been  repeatedly  and  expressly  decided 
in  New  York,  and  several  of  the  other  states  of 
this  country.  The  attributes  of  a  use  are  the 
same,  whatever  may  be  the  consideration  in 
which  it  is  founded;  and,  if  uses  commencing 
in  futuro  were  without  the  operation  of  the 
statute,  when  raised  by  a  bargain  and  sale, 
they  would  be  equally  so  when  originating  in 
a  covenant  to  stand  seized." 

In  Rogers  v.  Insurance  Co.,  9  Wend.  611,  the 
question  underwent  a  most  thorough  examina- 
tion, and  the  conclusion  was,  that  a  freehold  to 
commence  in  futuro  could  be  conveyed  by  a 
deed  of  bargain  and  sale,  operating  under  the 
statute  of  uses;  and  the  court  expressed  sur- 
prise that  any  one  should  have  ever  supposed 
that  such  was  not  the  law. 

In  Bell  V.  Scammon,  15  N.  H.  3S1,  the  same 
question  was  raised,  and  the  court  held  that  "a 
freehold  in  futuro  could  be  conveyed  either  by 
deed  of  bargain  and  sale,  or  by  a  covenant  to 
stand  seized." 

Mr.  Washburn,  in  his  late  ver.v  able  work  on 
Real  Property  (volume  2,  p.  017,  §  16),  says 
that  the  reasoning  of  Chancellor  Walworth,  in 
Rogers  v.  Insurance  Co.,  9  Wend.  611,  in  which 
he  maintains  that  an  estate  of  freehold,  to  com- 
mence in  futuro,  can  be  conveyed  by  a  deed  of 
bargain  and  sale,  and  the  authorities  upon 
which  he  rests  would  seem  to  leave  little  doubt 
in  the  matter,  beyond  what  arises  from  the  cir- 
cumstance that  other  courts  have  taken  a  dif- 
ferent view'  of  the  law. 

It  is  true,  that,  in  Massachusetts  and  this 
state,  when  determining  that  the  deeds  then 
under  consideration  were  valid  upon  other 
grounds,  judges  have  expressed  the  opinion 
that  a  freehold  to  commence  in  futuro  could 
not  be  conveyed  by  a  deed  of  bargain  and  sale; 
but  these  opinions  are  mere  obiter  dicta,  for 
they  have  never  yet  had  the  effect  of  defeating 
a  deed.  The  idea  seems  to  have  originated  in 
an  unauthorized  statement  (probably  accident- 


al) to  be  found  in  Pray  v.  Pierce,  7  Mass.  381. 
Having  under  discussion  the  rule  that  deeds 
should  be  so  construed  as  to  give  effect  to  the 
intention  of  the  parties,  and  not  to  defeat  it, 
the  case  of  Wallis  v.  Wallis,  4  Mass.  135,  was 
referred  to  by  way  of  illustration,  and  the  re- 
porter makes  the  court  say  that  the  deed  in  the 
latter  case  was  held  to  be  a  covenant  to  stand 
seized,  "because,  as  a  bargain  and  sale,  it 
would  have  been  a  conveyance  of  a  freehold 
in  futuro  and  therefore  void."  By  turning  to 
that  case  (Wallis  v.  Wallis),  it  will  be  seen 
that  such  a  statement  is  unauthorized.  The 
court  remarked  that,  by  a  common  law  convey- 
ance, a  freehold  could  not  be  conveyed  to  com- 
mence in  futuro,  which  was  unquestionnbly 
ti-ue;  but  the  court  did  not  say  that  such  a 
conveyance  could  not  be  made  by  a  deed  of  bar- 
gain and  sale,  which  owes  its  validity  to  the 
statute  of  uses,  and  not  to  the  common  law. 
Why  the  deed  in  Wallis  v.  Wallis  was  not  sus- 
tained as  a  bargain  and  sale,  instead  of  cov- 
enant to  stand  seized,  does  not  appear.  The 
case  was  submitted  without  argument,  and,  as 
the  deed  could  readily  be  sustained  as  a  cove- 
nant to  stand  seized,  it  may  not  have  occurred 
to  the  court  that  it  could  just  as  well  be  sus- 
tained as  a  bai'gain  and  sale.  On  careful  ex- 
amination, it  will  be  seen  that  these  cases 
(Wallis  V.  Wallis  and  Pray  v.  Pierce)  are  not 
authorities  for  the  doctrine  they  are  so  often 
cited  in  support  of. 

In  Welsh  v.  Foster,  12  Mass.  93,  the  deed, 
for  a  valuable  consideration,  to  be  paid  when- 
ever the  deed  should  take  effect,  and  not  other- 
wise, purported  to  convey  a  certain  part  of  a 
mill,  with  the  land,  &c.,  "provided  that  the  said 
deed  should  not  take  effect  or  be  made  use  of, 
until  the  said  millpond  should  cease  to  be  em- 
ployed for  the  purpose  of  carrying  any  two 
mill-wheels."  It  was  held  that  nothing  passed 
by  the  deed,  not  because  it  was  to  take  effect 
only  upon  the  happening  of  a  future  event,  but 
because  the  event,  if  it  should  ever  happen, 
might  be  delayed  much  beyond  the  utmost  peri- 
od allowed  for  the  vesting  of  estates  on  a  fu- 
ture contingency.  The  event,  it  was  held.  must, 
in  its  original  limitation,  be  such  that  it  must 
either  take  place,  or  become  impossible  to  take 
place,  within  the  space  of  one  or  more  lives  in 
being,  and  a  little  more  than  twenty-one  years 
afterwards,  to  prevent  the  creating  of  a  per- 
petuity, or  an  unalienable  estate.  Such  is  un- 
doubtedly the  law.  Besides,  no  consideration 
was  ever  paid  for  the  deed,  and  the  grantor  aft- 
erwards conveyed  to  another.  Under  these  cir- 
cumstances the  court  very  properly  held  the  deed 
void.  But  the  distinction  made  by  Judge  Jack- 
son, in  that  case,  between  covenants  to  stand 
seized,  and  deeds  of  bargain  and  sale,  is  mere 
dictum,  and  has  neither  reason  nor  authority  to 
rest  upon. 

Speaking  of  the  qualities  of  a  bargain  and 
sale.  Judge  Jacksou  says:  "One  of  these  quali- 
ties is,  that  it  must  be  to  the  use  of  the  bar- 
gainee, and  that  another  use  cannot  be  limitetl 
on  that  use,  from  which  it  follows  that  a  free- 
hold to  commence  in  futuro  cannot  be  conveyed 


FUTURE  USES. 


225 


in  this  mode;  as  that  would  be  to  make  the 
bargainee  hold  to  the  use  of  another  until  the 
future  freehold  should  vest."  Hold  what?  Ui> 
on  the  execution  of  a  deed  in  which  the  grantor 
reserves  to  himself  an  estate  for  life,  and  con- 
veys the  residue,  the  grantee  obtains  a  present 
vested  right  to  a  future  enjoyment  of  the 
property;  but,  until  the  future  freehold  vests, 
the  use,  the  seizin,  and  the  right  of  possession, 
remain  with  the  grantor,  and  there  is  no  con- 
ceivable thing  that  the  bargainee  will  be  requir- 
ed to  "hold  to  the  use  of  another." 

Judge  Jackson  seeras  to  have  supposed  that 
when  such  a  deed  is  executed  the  legal  estate  or 
seizin  passes  immediately  to  the  grantee,  and 
that,  until  his  own  future  freehold  vests,  he 
holds  this  legal  estate,  or  ideal  seizin,  to  the 
use  of  th«>  grantor.  But  such  a  theory  is  wrong, 
and  contrary  to  every  authority  we  have  been 
able  to  find.  In  fact,  under  the  statute  of  uses, 
such  a  tlieory,  which  separates  the  legal  estate 
from  the  use,  cannot  be  correct;  for,  by  the  very 
terms  of  the  statute,  the  lawful  seizin,  estate, 
and  possession,  shall  be  deemed  and  adjudged 
to  be  in  him  that  hath  the  use,  to  all  intents, 
constructions,  and  purposes  in  law;  and  is  made 
applicable  to  "any  such  use  in  fee  simple,  fee 
tail,  for  life,  or  for  years."  "The  seizin  remains 
in  the  person  creating  the  futm-e  use  till  the 
springing  use  arises,  and  is  then  executed  to  this 
use  by  the  statute."  2  Washb.  Real  Prop.  2S2. 
"If  raised  by  a  covenant  to  stand  seized,  or 
bargain  and  sale,  the  estate  remains  in  the 
covenantor  or  bargainor  until  the  springing  use 
arises."  Gilb.  Uses  (Sugden's  note)  1(J3.  A 
person  may  covenant  to  stand  seized,  or  bar- 
gain and  sell,  to  the  use  of  another  at  a  future 
day.  In  such  a  case  "the  use  is  severed  out  of 
the  grantor's  seizin."  4  Kent,  Comm.  298. 
"Here  is  a  conveyance  to  the  bargainee  to  take 
effect  at  the  decease  of  the  bargainor,  which 
creates  a  resulting  use  to  the  latter  during  life, 
with  a  vested  use  in  remainder  to  the  bargainee 
in  fee,  both  uses  being  served,  in  succession  out 
of  the  seizin  of  the  bargainor."  Jackson  v. 
Dunsbah,  1  Johns.  Cas.  96. 

The  rule,  that  a  bargain  and  sale  must  be  to 
the  use  of  the  bargainee,  and  not  to  the  use  of 
another,  applies  to  only  so  much  of  the  estate 
as  is  bargained  for,  and  not  to  the  residue, 
\^hich  is  not  bargained  for  and  not  paid  for; 
and  the  rule  is  not  violated,  and  there  is  noth- 
ing inequitable  or  repugnant  to  the  grant,  in 
,  requiring  him  to  wait  for  the  enjoyment  of  the 
property  till  such  time  as,  by  the  express  terms 
of  the  deed  under  which  he  claims,  he  is  entitled 
to  it. 

It  will  be  noticed,  that  Judge  Jackson  as- 
sumes the  existence  of  a  rule,  that  one  use  can- 
not be  limited  upon  another,  and  that  it  w:ould 
be  a  violation  of  this  rule  to  give  effect  to  a 
deed  of  bargain  and  sale  of  a  freehold,  to  com- 
mence in  future.  Such  a  rule  does  exist  in 
England.  Mr.  Watkins,  in  his  introduction  to 
his  very  able  work  on  conveyancing,  says,  that 
"about  the  time  of  passing  the  statute  of  uses, 
some  wise  man,  in  the  plenitude  of  legal  learn- 
ing, declared  there  could  not  be  an  use  upon  an 

GATES.K.P.— 15 


use;  and  that  this  very  wise  declaration,  which 
must  have  surprised  every  one  who  was  not 
sufhcieutly  learned  to  have  lost  his  common 
sense,  was  adopted."  And  Lord  Hardwicke,  in 
Hopkins  v.  Hopkins,  1  Atk.  591,  says,  that  by 
this  means,  a  statute  made  upon  great  consider- 
ation, introduced  in  a  solemn  and  pompous  num- 
ner,  has  had  no  other  effect  than  to  add,  at 
most,  three  words  to  a  conveyance.  Mr.  Wil- 
liams, in  his  work  on  Real  Property  (page  124), 
says  this  rule  has  much  of  the  technical  sub- 
tilty  of  the  scholastic  logic  which  was  then 
prevalent.  Lord  Mansfield  calls  it  "absurd  nar- 
rowness," 2  Doug.  774.  Blackstone  calls  it  a 
"technical  scruple;"  and  Mr.  Sugden,  in  a  note 
to  Gilb.  Uses,  p.  348,  says  it  never  ought  to 
have  been  sanctioned  at  all.  In  Thacher  v. 
Omans  (decided  in  1792),  reported  in  3  Pick. 
521,  on  page  528,  the  court  refer  to  the  censures 
of  Blackstone  and  Lord  Mansfield,  and  express 
strong  doubts  as  to  the  proprietj''  of  admitting 
it  in  this  country;  and  Mr.  Greenleaf  says  it 
may  well  be  doubted  whether  the  rule  has  been 
adopted  in  this  country.  Note  to  Greenl.  Cruise, 
tit.  12,  c.  1,  §  4.  With  such  a  weight  of  au- 
thority against  it.  if  the  effect  of  the  rule  would 
be  to  defeat  such  conveyances  as  we  are  now  con- 
sidering, we  think  we  might  be  warranted  in  re- 
jecting it  altogether.  But  such  is  not  its  effect. 
When  a  freehold  is  conveyed,  to  commence  at 
a  future  day,  till  such  future  day  arrives  the 
use  results  to  the  grantor,  and  then  passes  to 
the  grantee;  and  the  uses  are  not  limited  one 
upon  the  other,  but  one  after  the  other;  and,  in 
this  way,  a  fee  simple  may  be  carved  into  an 
indefinite  number  of  less  estates.  "So  long  as 
a  regular  order  is  laid  down,  in  which  the  pos- 
session of  the  lands  may  devolve,  it  matters  not 
now  many  kinds  of  estates  are  granted,  or  on 
how  many  persons  the  same  estate  is  bestowed. 
Thus,  a  grant  may  be  made  at  once  to  fifty  dif- 
ferent people,  separately,  for  their  lives."  Wil- 
liams, Real  Prop.  189,  190.  "Shifting  or  sub- 
stituted uses  do  not  fall  within  this  technical 
rule  of  law,  for  they  are  merely  alternate  uses." 
4  Kent,  Comm.  301. 

The  statement  that  a  freehold  to  commence  in 
future  cannot  be  conveyed  by  a  deed  of  bar- 
gain and  sale,  which  seems  first  to  have  been 
made  in  Pray  v.  Pierce,  as  before  stated,  has 
been  several  times  repeated  in  Massachusetts 
(Welsh  V,  Foster,  12  Mass.  93;  Parker  v.  Nichnls, 
7  Pick.  115;  Gale  v.Coburn,lS  Pick.  397;  Brew- 
er V.  Hardy,  22  Pick.  370).  and  once  at  least  in 
this  state  (Marden  v.  Chase,  32  Me.  329);  but  the 
only  case  we  have  found  in  which  an  attempt 
has  been  made  to  give  a  reason  for  the  supposed 
rule  is  that  of  Welsh  v.  Foster;  and  a  careful 
examination  has  satisfied  us  that  the  argument 
in  that  case  is  unsound,  and  not  supported  by 
any  adjudged  case  tbat  has  the  weight  of  au- 
thority. It  is  admitted  in  all  these  cases  that 
if  it  can  be  shown  that  the  parties  to  such 
deeds  are  near  relatives,  effect  may  be  given  to 
them  as  covenants  to  stand  seized,  made,  not 
as  they  purport  to  be,  for  a  pecuniary  consid- 
eration, but  in  consideration  of  love  and  afifec- 


226 


ESTATES  IN  REAL  PROPERTY. 


tion.  And  there  is  no  doubt  that  if  two  deeds 
should  be  executed  instead  of  one;  that  is,  if 
the  grantor  should  first  convey  the  whole  estate, 
and  then  take  back  a  life  lease,  the  transaction 
would  be  held  legal.  The  doctrine,  therefore, 
that  a  freehold  to  commence  in  future  cannot 
be  conveyed  by  a  deed  of  bargain  and  sale, 
amounts  to  no  more  than  this:  that  if  the  own- 
er of  a  fee  simple  estate  proposes  to  reserve  to 
himself  a  life  estate,  and  to  sell  the  residue,  if 
he  deals  with  a  relative,  such  an  arrangement 
can  be  carried  into  effect  by  making  one  deed; 
but  if  he  deals  with  a  stranger  it  will  be  neces- 
sary to  make  two.  It  is  certainly  very  strange 
that  a  doctrine  so  technical,  so  easily  evaded, 
and  so  utterly  destitute  of  merit,  should  have 
gained  the  cun-ency  it  has. 

We  entertain  no  doubt  that,  by  deeds  of  bar- 
gain and  sale,  deriving  their  validity  from  the 
statute  of  uses,  freeholds  may  be  conveyed  to 
commence  in  futuro.  It  will  be  seen  that  the 
law  is  so  held  in  England, -and  by  an  overwhelm- 
ing weight  of  authority  in  this  country.  In  fact 
that  such  was  the  law  seems  never  to  have  been 
doubted  except  in  Massachusetts  and  this  state; 
and  we  think  the  error  originated  in  the  unau- 
thorized remark  found  in  Pray  v.  Pierce,  and 
has  been  repeated  from  time  to  time  without 
receiving  that  consideration  which  its  impor- 
tance demanded. 

We  also  are  of  opinion  that  effect  may  bo 
given  to  such  deeds  by  force  of  our  own  stat- 
utes, independently  of  the  statute  of  uses.  Our 
deeds  are  not  framed  to  convey  a  use  merely, 
relying  upon  the  statute  to  annex  the  legal  title 
to  the  use.  They  purport  to  convey  the  land 
itself,  and  being  duly  acknowledged  and  record- 
ed, as  our  statutes  require,  operate  more  like 
feoffments  than  like  conveyances  under  the 
statute  of  uses.  In  Thacher  v.  Omans.  3  Pick., 
on  page  525,  Chief  Justice  Dana,  speaking  of 
our  statute  of  conveyances,  first  enacted  in  IGOT, 
re-enacted  in  the  Revised  Laws  of  1784,  incor- 
porated into  the  statutes  of  this  state  in  1821, 
and  still  in  force,  says:  "This  statute  was  evi- 
dently made  to  intro<luee  a  new  mode  of  creat- 
ing or  transferring  freehold  estates  in  coi-poreal 
hereditaments,  namely,  by  deed,  signed,  sealed, 
acknowledged,  and  recorded,  as  the  statute  men- 
tions; it  does  not  prescribe  any  particular  kind 
of  deeds  or  conveyances,  but  is  general,  and  ex- 
tends to  all  kinds  of  conveyances."  On  page 
532  he  further  says:  "It  seems  evident  to  me 
that  a  deed  executed,  acknowledged  and  record- 
ed as  our  statute  requires,  cannot  be  considered 
as  a  bargain  and  sale,  because  the  legal  estate 
is  thereby  passed  without  the  operation  of  the 
statute  of  uses,  in  as  ample  a  manner  as  by  a 


feoffment  at  common  law,  accompanied  with 
the  ancient  ceremony  of  livery  of  seizin."  Such 
also  were  the  opinions  of  Chancellor  Kent  and 
Professor  Greenleaf.  4  Kent,  Comm.  461; 
Greenl.  Cruise,  tit.  12,  c.  1,  §  4,  note,  tit.  32,  c. 
4,  §  1,  note.  Mr.  Greenleaf  in  the  note  first  cit- 
ed, says  that  in  most  of  the  states,  (including 
Maine,)  "deeds  of  conveyance  derive  their  ef- 
fect, nor  from  the  statute  of  uses,  but  from 
their  own  statutes  of  conveyances;  operating 
nearly  like  a  feoffment,  with  livery  of  seizin,  to 
convey  the  land,  and  not  merely  to  raise  a  use 
to  be  afterwards  executed  by  the  statute  of 
uses."  Mr.  Oliver,  in  his  work  on  Conveyan- 
cing (Ed.  1853,  p.  281),  speaking  of  our  com- 
mon warranty  deed,  says:  "This  deed  derives 
its  operation  from  statute,  and  has  therefore 
some  properties  peculiar  to  itself.  *  *  *  The 
transfer  is  not  affected  by  the  execution  of  a 
use,  as  in  a  bargain  and  sale,  but  the  land  itself 
is  conveyed,  as  in  a  feoffment,  except  that  liv- 
ery of  seizin  is  dispensed  with,  upon  complying 
with  the  requisitions  of  the  statute,  acknowl- 
edging and  recording,  substituted  instead  of  it." 
We  think  these  views  are  sound;  and  if  any 
of  the  technical  rules  which  have  grown  up  un- 
der the  statute  of  uses  stood  in  the  way  of  giv- 
ing effect  to  deeds  executed  in  accordance  with 
the  provisions  of  our  statute,  simply  because 
they  purport  to  convey  freeholds  to  commence 
at  a  future  day,  we  think  effect  might  be  given 
to  them  independently  of  the  statute  of  uses. 
But,  in  our  judgment,  no  such  rules  do  stand 
in  the  way  of  giving  effect  to  such  deeds.  They 
may  be  upheld  either  as  bargains  and  sales  un- 
der the  statute  of  uses,  or  as  conveyances  de- 
riving their  validity  from  our  own  statutes. 

Having  come  to  the  conclusion  tliat  the  de- 
mandant is  entitled  to  recover  upon  another 
ground,  it  was  not  absolutely  necessary  to  con- 
sider the  validity  of  the  deed  from  Mrs.  Brown 
to  Oliver  S.  Nay,  which  purports  to  convey  a 
freehold  to  commence  in  futuro.  But,  as  the 
question  involved  is  an  important  one,  and  was 
ably  argued  by  the  counsel  in  the  case;  and, 
as  the  court  has  already  decided  one  case  with- 
in the  past  year  (Hunter  v.  Hunter,  in  the  coun- 
ty of  Sagadahoc),  in  accordance  with  the  views 
here  expressed,  but  without  any  written  opin- 
ion; and  as  several  other  suits,  involving  the 
same  question,  are  still  pending  before  the 
court,  we  deemed  it  best  to  make  known  our  de- 
cision of  the  question,  and  to  state  our  reasons 
for  the  decision,  in  connection  with  this  case. 
Judgment  for  demandant. 

APPLETON,  C.  J.,  and  CUTTING,  DAVIS, 
and  BARROWS,  JJ.,  concur. 


POWERS. 


22 


BROWN  V.  PHILLirS  et  al. 

(18  Atl.  249,  16  R.  I.  612.) 

Supreme  Court  of  Rhode  Island.    Aug.  17.  ISSO. 

Bill  in  equity  to  reform  a  deed.  On  de- 
murrer to  bill. 

Charles  F.  Bakhvin,  for  complainant. 
Stephen  A.  Cooke,  Jr.,  and  George  J .  West, 
for  responilents. 

STIXESS.  0.  John  Kelton  devised  his  es- 
tate to  Ills  wife,  Sally  Kelton,  for  life,  with 
power  to  sell  so  much  and  such  part  of  the 
same,  from  time  to  time,  as  she  might  think 
necessary  for  her  comfortable  support.  Aft- 
er his  death  Sally  Kelton  made  a  deed  of  the 
estate  to  Herbert  B.  Wood,  in  trust,  that  he 
should  manage  the  same,  and  from  the  in- 
come or  proceeds  of  sale  theieof  pay  the  cost 
and  expenses  of  her  care  and  support;  no 
other  reference  than  by  this  provision  being 
made  to  the  power  under  which  she  migiit 
sell.  In  Phiilii'S  v.  Wood,  16  Pi.  1.  274, 
15- Atl.  Kep.  88,  this  court  held  that  the 
power  was  peisonal,  and  not  assi<rnable;  that 
she  only  had  authority  to  sell  what  was  nec- 
essary for  her  comfortable  sui)port,  and  that 
she  could  not  transfer  the  estate,  with  that 
-discretiojiary  power,  to  another.  Conse- 
<]uently  the  trustee  took  only  what  the  gran- 
tor had  the  right  to  convey,  outside  of  the 
power,  which  was  her  life-estate.  Wood 
then  held  the  legal  title  to  her  life-estate, 
and  she  had  the  equitable,  beneficial  interest 
therein.  After  this  decision,  Mrs.  Kelton 
made  another  deed  to  Wood  of  all  her  right, 
title,  and  interest  in  and  to  the  estate  of  her 
husband;  no  reference  whatever  being  made 
to  her  power  to  sell  under  the  will,  for  her 
support.  In  Phillips  v.  Brown,  IG  K.  I. 
:7y,  15  Atl.  Rep.  90,  this  court  held  that 
this  second  deed,  in  the  absence  of  any 
reference  to  the  power  and  of  anything  to 
show  an  intention  to  act  under  it,  operated 
only  to  convey  the  interest  she  then  had  in 
the' estate,  which  was  her  equitable  estate  for 
life.  Mrs.  Kelton  died  in  August,  1887. 
The  complainant,  to  whom  Wood  conveyed 
«  part  of  the  estate,  now  seeks  to  have  the 
second  deed  of  ^Irs.  Kelton  to  Wood  re- 
formed, upon  the  ground  that  Mrs.  Kelton 
intended  by  that  deed  to  convey  the  estate  in 
execution  of  the  power,  and  that  by  mistake 
the  deed  was  so  drawn  that  it  failed  to  ex- 
press  her  true  intent.  The  defendant  Phill- 
ips, residuary  legatee  under  the  will  of  .Jithn 
Kelton,  demurs  to  the  bill.  The  question, 
then,  is  whether  the  case  stated  entitles  the 
complainant  to  relief.  It  may  well  be  ques- 
tioned whether,  if  the  deed  should  be  re- 
formed so  as  to  express  an  intention  to  convey 
the  property  under  the  power,  it  would  show 
a  compliance  with  the  power.  The  bill  does 
not  set  forth  a  sale  of  the  property  to  jirovide 
for  Mrs.  Kelton 's  sujiport,  but  a  simple  con- 
veyance "for  one  dollar  and  other  good  and 
valuable  consideration."  We  may  assume 
that  the  "other  (  onsideration"  included  an 
^ajjfieement  ou  the  part  of  Wood  to  provide  for 


Mrs.  Kelton's  support.  But  if  so,  turning 
over  property  on  such  an  agreement  is  a  veiy 
diflferent  thing  from  selling  so  much  thereof 
as  may  be  necessary  for  her  support.  How- 
ever, as  this  point  has  not  been  taken,  nor 
argued,  we  pass  it  by  and  consider  the  case 
as  presented. 

It  is  well  settled,  as  the  complainant 
claims,  that  a  court  of  equity  will  aid  the  de- 
fei live  execution  of  a  power;  but,  as  stated 
in  the  leading  case  of  Toilet  v.  Toilet,  2  P. 
AVms.  489,  1  White  &  T.  Lead.  Cas.  *227. 
*228,  there  is  a  diflerence  between  a  non- 
execution  and  a  defective  execution  of  a 
power.  The  "court  will  not  help  the  non- 
execution  of  a  power,  since  it  is  against  the 
nature  of  a  power,  which  is  left  to  the  free 
will  and  election  of  a  party  whether  to  exe- 
cute or  not;  for  which  reason  equity  will  not 
say  he  shall  execute  it,  or  do  that  for  him 
which  he  does  not  think  fit  to  do  himself." 
In  order  to  sustain  the  execution  of  a  power 
the  instrument  must,  at  least,  show  an  in- 
tention or  attempt  to  execute  it.  This  may 
appear  when  the  instrument  would  other- 
wise be  inoperative,  or  when  the  referenct^  to 
the  subject  of  the  power  is  such  as  to  mani- 
fest the  intention;  but  the  non-execution  of 
a  power  cannot  be  aided  by  proof  of  an  inten- 
tion to  execute.  Wilkinson  v.  Gettv.  13  Iowa, 
157;  Garth  v.  Townsend,  L.  R.  7  Eq.  220; 
Foos  V.  Scarf,  55  Md.  301;  Mitchell  v.  Den- 
sou, 29  Ala.  327.  Mrs.  Kelton's  deed  makes  no 
reference  to  tiie  power,  nor  to  the  subject  of 
the  ])ower,  by  description  of  the  estate  which 
she  could  sell  under  it,  as  distinct  from  her 
life-estate.  Nor  was  the  deed  inoperative 
without  the  aid  of  the  power.  Xothing  ap- 
pears in  it  to  show  an  intent  to  convey  any- 
thing beyond  her  own  interest.  It  is  like 
the  will  in  Andrews  v.  Emmot,  2  Brown,  Ch. 
297,  which  Lord  Alvanlf:y,  in  Hales  v. 
Margerum,  3  Ves.  299,  301,  called  a  leading 
case  upon  this  point.  There,  after  saying 
the  power  need  not  be  recited  in  express 
terms,  but  that  the  intent  must  appear  by 
some  kind  of  reference  to  the  power,  the 
court  added:  "But  the  testator  has  not  de- 
scribed anything;  all  his  expressions  will  re- 
fer to  his  own  property."  The  recent  case 
of  Patterson  v.  Wilson,  64  Md.  193,  1  Atl. 
Rep.  68,  gives  a  careful  review  of  this  sub- 
ject. It  was  held,  as  the  will  in  question 
contained  no  reference  to  the  power  nor  to 
the  subject  on  which  the  power  was  to  oper- 
ate, and  as  it  was  not  denied  that  the  tes- 
tator had  other  proi)erty,  her  will  would  be 
operative  without  the  aid  of  the  power,  and 
could  not  be  regarded  as  an  execution  of  the 
power.  See,  also,  lUngham's  Appeal,  64  Pa. 
St.  345;  Lippincott  v.  Stokes,  6  X.  J.  Eq. 
122.  Our  conclusion  is  that,  as  Mrs.  Kelton 
did  not  expressly  undertake  to  act  under  the 
power,  nor  manifest  an  intention  or  attempt 
so  to  do,  but  made  a  deed  which,  by  its 
terms,  was  operative  only  upon  her  own  in- 
terest in  the  property,  the  bill  presents  a 
case  of  non-execution  simply,  which  the 
court  cannot  aid.  The  demurrer  to  the  bill 
must  be  sustained. 


228 


ESTATES  IN  REAL  PROPERTY. 


THORNBURG  et  al.  v.  WIGGINS  et  ux. 

(34  N.  E.  999,  135  Ind.  178.) 
Supreme  Court  of  Indiana.     Oct.  19,  1893. 

Appeal  from  circuit  court,  Randolph  county; 
Leauder  Monks,  Judge. 

Action  by  Daniel  S.  Wiggins  and  wife  against 
William  H.  Thornburg  and  others  to  enjoin  a 
sale  under  execution.  Demurrers  to  the  com- 
plaint were  overruled,  and  defendants  appeal, 
lieversed. 

Thompson,  Marsh  &  Thompson,  for  appel- 
lants. Watson  &  AVatson  and  J.  L.  Engle,  for 
appellees. 

DAILEY,  J.  This  was  an  action  instituted 
in  the  court  below,  in  two  paragraphs,  in  the 
tirst  of  which  appellees  allege,  in  substance, 
that  on  and  before  December  15,  1884,  one 
Lemuel  Wiggins  was  the  owner  of  a  certain 
tract  of  real  estate,  therein  described,  contain- 
ing 80  acres;  that  on  said  day  said  Lemuel 
and  his  wife,  Mary,  executed  and  delivered  to 
the  appellees  a  warranty  deed,  conveying  to 
them  the  fee  simple  of  said  real  estate;  that 
at  the  time  of  said  conveyance  the  appellees 
were,  ever  since  have  been,  and  now  are,  hus- 
band and  wife;  that  said  deed  conveyed  to 
the  appellees  the  title  to  said  real  estate,  which 
they  took  and  accepted,  ever  since  have  held, 
and  now  hold  by  entireties,  and  not  otherwise; 
that  appellees  hold  their  title  to  said  real  estate 
by  said  deed  of  Lemuel  Wiggins,  and  not  other- 
wise; that  on  the  24th  day  of  April,  1877, 
Isaac  R.  Howard  and  Isaac  N.  Gaston,  who 
were  defendants  below,  recovered  a  judgment 
in  the  Randolph  circuit  coui't  for  the  sum  of 
$403.70  and  costs  against  one  John  T.  Bur- 
roughs and  the  appellee  Daniel  S.  Wiggins  as 
partners  doing  l)usiness  under  the  firm  name  of 
Burroughs  &  Wiggins;  that  on  May  12,  1886, 
said  Howard  and  Gaston  caused  an  execution 
to  be  issued  on  said  judgment,  and  placed  in 
the  hands  of  the  appellant  Thornburg,  as  sher- 
iff of  said  county,  and  directed  him  to  levy  the 
same  on  said  real  estate,  and  that  said  sheriff 
did,  on  the  25th  day  of  May,  1886,  levy  said 
execution  on  said  real  estate,  or  on  the  one- 
half  interest  in  value  thereof  taken  as  the  prop- 
erty of  said  appellee  Daniel  S  Wiggins,  to  sat- 
isfy said  writ;  that  pursuant  to  the  levy  there- 
of said  sheriff  proceeded,  by  the  direction  of 
said  Howard  and  Gaston,  to  advertise  said 
real  estate  for  sale  under  said  execution  and 
levy  to  make  said  debt,  and  did  on  the  8th  day 
of  June  advertise  the  same  for  sale  on  the 
3d  day  of  July,  1886,  and  will  on  said  day  sell 
the  same  unless  restrained  and  enjoined  from  so 
doing  by  the  court;  that  said  Daniel  S.  Wig- 
gins has  no  interest  in  said  premises  subject  to 
sale  thereon;  that  the  appellees  hold  the  title 
thereto  as  tenants  by  entireties,  and  not  other- 
wise; that  the  sale  of  said  tract  on  said  exe- 
cution would  cast  a  cloud  on  the  appellees'  title, 
etc.  The  second  paragraph  is  the  same  as  the 
first  in  substantial  averments,  except  that  in 
this  paragraph  the  appellees  set  out  as  a  part 
thereof  a   copy  of  the  deed   under   which   they 


claim  title  to  said  real  estate  as  such  tenants, 
by  entireties.  The  granting  clause  of  the  deed 
is  as  follows:  "This  indenture  witnesseth  that 
Lemuel  Wiggins  and  Mary  Wiggins,  his  wife, 
of  Randolph  county,  in  the  state  of  Indiana, 
convey  and  warrant  to  Daniel  S.  Wiggins  and 
Laura  Belle  Wiggins,  his  wife,  in  joint  ten- 
ancy," etc.  Appellants  separately  and  sever- 
ally demurred  to  each  paragraph  of  the  com- 
plaint, and  their  demurrers  were  overruled  by 
the  court,  to  which  the  appellants  excepted, 
and,  refusing  to  answer  the  complaint,  judg- 
ment was  rendered  in  favor  of  appellees  on  said 
demurrers.  Appellants  appeal,  assigning  as  er- 
rors the  overruling  of  said  demurrers,  and  urge 
that  the  appellees  under  the  deed  took  as  joint 
tenants,  and  hence  that  the  husband's  interest 
is  subject  to  levy  and  sale  upon  execution. 

A  joint  tenancy  is  an  estate  held  by  two  or 
more  persons  jointly,  so  that  during  the  lives 
of  all  they  are  equally  entitled  to  the  enjoy- 
ment of  the  land,  or  its  equivalent,  in  rents 
and  profits;  but  upon  the  death  of  one  his  share 
vests  in  the  survivor  or  survivors  until  there  be 
but  one  survivor,  when  the  estate  becomes  one 
in  severalty  in  him,  and  descends  to  his  heirs 
upon  his  death.  It  must  always  arise  by  pur- 
chase, and  cannot  be  created  by  descent.  Such 
estates  may  be  created  in  fee,  for  life,  or  years,, 
or  even  in  remainder.  But  the  estate  held  by 
each  tenant  must  be  alike.  Joint  tenancy  may 
be  destroyed  by  anything  which  destroys  the 
unity  of  title.  Our  law  aims  to  prevent  their 
creation,  and  they  cannot  arise  except  by  the 
instrument  providing  for  such  tenancy.  Grif- 
fin V.  Lynch,  16  Ind.  398.  9  Am.  &  Eng. 
Enc.  Law,  850,  says:  "Husband  and  wife  are, 
at  common  law,  one  person,  so  that  when  realty- 
vests  m  them  both  equally,  *  *  *  they  take 
as  one  person;  they  take  but  one  estate,  as  a 
corporation  would  take.  In  the  case  of  realty, 
they  are  seised,  not  per  my  et  per  tout,  as 
joint  tenants  are,  but  simply  per  tout;  both  are 
seised  of  the  whole,  and,  each  being  seised  of 
the  entirety,  they  are  called  'tenants  by  the  en- 
tirety,' and  the  estate  is  an  estate  by  entireties. 
*  *  *  Estates  by  entireties  may  be  created 
by  will,  by  instrument  of  gift  or  purchase,  and 
even  by  inheritance.  Each  tenant  is  seised  of 
the  whole;  the  estate  is  inseverable,  cannot 
be  partitioned;  neither  husband  nor  wife  can 
alone  affect  the  inheritance;  the  survivor  takes 
the  whole."  This  tenancy  has  been  spoken  of 
as  "that  peculiar  estate  which  arises  upon  the 
conveyance  of  lands  to  two  persons  who  are  at 
the  time  husband  and  wife,  commonly  called 
'estates  by  entirety.'  "  As  to  the  general  fea- 
tures of  estates  by  entireties  there  is  little  room 
for  controversy,  and  there  is  none  between 
counsel.  Our  statute  re-enacts  the  common  law. 
Arnold  v.  Arnold,  30  Ind.  305;  Davis  v.  Clark, 
26  Ind.  424.  Strictly  speaking,  estates  by  en- 
tireties are  not  joint  tenancies  (Chandler  v. 
Cheney,  37  Ind.  391;  Hulett  v.  Inlow,  57  Ind. 
412),  the  husband  and  wife  being  seised,  not  of 
moieties,  but  both  seised  of  the  entirety  per 
tout,  and  not  per  my  (Jones  v.  Chandler,  40 
Ind.   589;     Davis   v.   Clark,    supra;     Arnold   v. 


JOmT  TENANCIES— ESTATES  IX  ENTIRETY. 


229 


Arnold,  supra).  It  has  beeu  said  by  this  court 
in  some  of  the  earlier  decisions  that  no  particu- 
lar words  are  necessary.  A  conveyance  which 
would  make  two  persons  joint  tenants  will 
make  a  husband  and  wife  tenants  of  the  en- 
tirety. It  is  not  even  necessary  that  they  be 
described  as  such,  or  their  marital  relation  re- 
ferred to.  Morrison  v.  Scybold,  92  Ind.  302; 
Hadlock  v.  Gray,  104  Ind.  50G,  4  N.  E.  167; 
Dodge  V.  Kinzy,  101  Ind.  102;  Hulett  v.  Inlow, 
57  Ind.  414;  Chandler  v.  Cheney,  37  Ind.  395. 
But  the  court  has  said  that  the  general  rule 
may  be  defeated  by  the  expression  of  conditions, 
limitations,  and  stipulations  in  the  conveyance 
which  clearly  indicate  the  creation  of  a  differ- 
ent estate.  Hadlock  v.  Gray,  supra;  Edwards 
V.  Beall,  75  Ind.  401.  Having  its  origin  in 
the  fiction  of  common-law  unity  of  husband 
and  wife,  the  courts  of  some  states  have  held 
that  married  women's  acts  txteuding  their 
rights  destroyed  estates  by  entirety,  but  this 
court  holds  otherwise  (Carver  v.  Smith,  90  Ind. 
226);  and  the  greater  weight  of  authority  is 
in  its  favor.  Our  decisions  hold  that  neither 
alone  can  alienate  such  estate.  Jones  v.  Chand- 
ler, supra;  Morrison  v.  Seybold,  supra.  There 
can  be  no  partition.  Chandler  v.  Cheney,  37 
Ind.  891.  A  mortgage  executed  by  the  hus- 
band alone  is  void  (Jones  v.  Chandler,  40  Ind. 
391),  and  the  same  is  true  of  a  mortgage  exe- 
cuted by  both  to  secure  a  debt  of  the  husband 
(Dodge  V  Kinzy,  101  Ind.  105);  and  the  wife 
cannot  validate  it  by  agreement  with  the  pur- 
chaser to  indemnify  in  case  of  loss  arising  on 
account  of  it  (State  v.  Kennett,  114  Ind.  160, 
16  N.  E.  173).  A  judgment  against  one  of  them 
is  no  lien  upon  it.  Ditching  Co.  v.  Beck,  99 
Ind.  250;  McConnell  v.  Martin,  52  Ind.  434; 
Orthwein  v.  Thomas  (111.  Sup.)  13  N.  E.  564. 
Upon  the  death  of  one,  the  survivor  takes  the 
whole  in  fee.  Arnold  v.  Arnold,  supra.  The 
deceased  leaves  no  estate  to  pa/  debts  (Simpson 
V.  Pearson,  31  Ind.  1);  and  during  their  joint 
lives  there  can  be  no  sale  of  any  part  on  ex- 
ecution against  either  (Carver  v.  Smith,  supra; 
Dodge  V.  Kinzy,  101  Ind.  105;  Hulett  v.  Inlow, 
57  Ind.  412;  Chandler  v.  Cheney,  supra;  Davis 
V.  Clark,  supra;  McConnell  v.  Martin,  supra; 
Cox's  Adm'r  v.  Wood,  20  Ind.  54).  The  stat- 
utes extending  the  rights  of  married  women 
have  no  effect  whatever  upon  estates  by  entire- 
ty. Carver  v.  Smith,  90  Ind.  223.  Such  estate 
is  in  no  sense  either  the  husband's  or  the  wife's 
separate  property.  The  husband  may  make  a 
valid  conveyance  of  his  interest  to  his  wife, 
because  it  is  with  her  consent.  Enyeart  v. 
Kepler,  118  Ind.  34,  20  N.  E.  539.  The  rule 
that  husband  and  wife  take  by  entireties  was 
enacted  in  this  territory  in  1807,  nine  years  be- 
fore Indiana  was  vested  with  statehood,  and 
has  been  repeated  in  each  succeeding  revision  of 
our  statutes.  It  has  thus  been  the  law  of  real 
property  with  us  for  86  years.  Section  2922, 
Rev.  St.  1881.  provides  that  "all  conveyances 
and  devises  of  lands,  or  of  any  interest  there- 
in, made  to  two  or  more  persons,  except  as  pro- 
vided in  the  next  following  section,  shall  be 
construed  to  create  estates  in  common,  and  not 


in  joint  tenancy,  unless  it  be  expressed  there- 
in that  the  grantees  or  devisees  shall  hold  the 
same  in  joint  tenancy  and  to  the  survivor  of 
them,  or  it  shall  manifestly  appear  from  the 
tenor  of  the  instrument  that  it  was  intended  to 
create  an  estate  in  joint  tenancy."  Section  2923 
provides  that  the  preceding  section  shall  not 
apply  to  conveyances  made  to  husband  and 
wife.  Under  a  statute  of  the  state  of  Michi- 
gan, similar  in  all  its  essential  qualities  to  our 
own,  the  court  held  that,  "where  lauds  are  con- 
veyed in  fee  to  husband  and  wife,  they  do  not 
take  as  tenants  in  common"  (Fisher  v.  Provin, 
25  Mich.  347),  they  take  by  entireties.  "What- 
ever would  defeat  the  title  of  one,  would  de- 
feat the  title  of  the  other.  Manwaring  v.  Pow- 
ell, 40  Mich.  371.  They  hold  neither  as  ten- 
ants in  common  nor  as  ordinary  joint  tenants. 
The  survivor  takes  the  whole.  During  the 
lives  of  both,  neither  has  an  absolute  inher- 
itable interest;  neither  can  be  said  to  own  an 
undivided  half.  Insurance  Co.  v.  liesh,  Id.  241 ; 
Allen  V.  Allen,  47  Mich.  74,  10  N.  W.  113. 

While  the  rule  of  entireties  was  predicated 
upon  a  fiction,  the  legislative  intent  in  this  state 
has  always  been  to  preserve  this  estate,  and 
has  continued  the  peculiar  statute  for  this  pur- 
pose. Estates  by  entireties  have  been  preserv- 
ed as  between  husband  and  wife,  although  joint 
tenancies  between  unmarried  persons  have  been 
abolished,  so  as  to  provide  a  mode  by  which  a 
safe  and  suitable  provision  could  be  made  for 
married  women.  Carver  v.  Smith,  90  Ind.  227. 
"Where  a  rule  of  property  has  existed  for  sev- 
enty years,  and  is  sustained  by  a  strong  and 
uniform  line  of  decisions,  there  is  but  little 
room  for  the  court  to  exercise  its  judgment  on 
the  reasons  on  which  the  rule  is  founded.  Such 
a  rule  of  property  will  be  overruled  only  for 
the  most  cogent  reasons,  and  upon  the  strong- 
est convictions  of  its  incorrectness.  *  *  *  It 
is  evident  that  the  legislature  of  1881  did  not 
intend  to  repeal  the  statutes  establishing  ten- 
ancies by  entireties.  They  simply  intended  to 
enlarge  in  some  particulars  the  power  of  the 
wife,  which  existed  already  under  the  Acts  of 
1852  and  the  years  following.  *  *  *  It  did 
not  abolish  estates  by  entireties  as  between  hus- 
band and  wife,  but  provided  that  when  a  joint 
deed  was  made  to  husband  and  wife  they  sljould 
hold  by  entireties,  and  not  as  joint  tenants  or 
tenants  in  common."  Carver  v.  Smith,  supra. 
In  Chandler  v.  Cheney,  37  Ind.,  on  page  396, 
the  court  says:  "It  was  a  well-settled  rule  at 
common  law  that  the  same  form  of  words 
which,  if  the  grantees  were  unmarried,  would 
have  constituted  them  joint  tenants,  will,  they 
being  husband  and  wife,  make  them  tenants  by 
entirety.  The  rule  has  been  changed  by  our 
statute  above  quoted."  The  whole  trend  of  au- 
thorities, however,  is  in  the  direction  of  pre- 
serving such  tenancies,  where  the  grantees  sus- 
tain the  relation  of  husband  and  wife,  unless 
from  the  language  employed  in  the  deed  it  is 
manifest  that  a  different  purpose  was  intended. 
Where  a  contrary  intention  is  clearly  expressed 
in  the  deed,  a  different  rule  obtains.  "A  hus- 
band and  wife  may  take  real  estate  as  joint  ten- 


230 


ESTATES  IN  REAL  PROPERTY. 


ants  or  tenants  in  common,  if  the  instrument 
creating  the  title  use  apt  words  for  the  pur- 
pose." 1  Prest.  Est.  132;  3  Bl.  Comm.,  Shars- 
wood's  note;  4  Kent,  Comm.,  side  page  HtV4  1 
Bish.  Mar.  Worn.  §  616  et  seq.;  Freem.  Coteu. 
§  72;  Fladung  v.  Rose,  58  Md.  13-24.  "And  in 
case  of  devise  and  conveyances  to  husband  and 
wife  together,  though  it  has  been  said  that  they 
can  take  only  as  tenants  by  entireties,  the  pre- 
vailing rule  is  that,  if  the  instrument  expressly 
so  provides,  they  may  take  as  joint  tenants  or 
tenants  in  coiumon."  Stew.  Husb.  &  Wife,  §§ 
307-310;  Tied.  Real.  Prop.  §  244.  "And  as  by 
common  law  it  was  competent  to  make  hus- 
band and  wife  tenants  in  common  by  proper 
words  in  the  deed  or  devise,"  etc.  (Hoffman 
v.  Stigers,  28  Iowa,  310;  Brown  v.  Brown,  133 
lud.  476,  32  N.  E.  1128),  "so  it  seems  that  hus- 
band and  wife  may  by  express  words  be  made 
tenants  in  common  by  gift  to  them  during  cov- 
erture" (McDermott  v.  French,  15  N.  J.  Eq. 
80).  In  Hadlock  v.  Gray,  104  Ind.  599,  4  N. 
E.  167,  a  conveyance  had  been  made  to  Isaac 
Cannon  and  Mary  Cann>on,  who  were  husband 
and  wife,  during  their  natural  lives,  and  the 
court  say:  "The  language  employed  in  the 
deed  plainly  declares  that  Isaac  Cannon  and 
Mary  Cannon  are  not  to  take  as  tenants  by 
entirety.  The  result  would  follow  from  the 
provision  destroying  the  survivorship,  for  this 
is  the  grand  and  essential  characteristic  of  such 
a  tenancy.  *  *  *  Th«  whole  force  of  the  lan- 
guage employed  is  opposed  to  the  theory  that 
the  deed  creates  an  estate  in  fee  in  the  husband 
and  wife."  The  court  further  say:  "It  is  true 
that  where  real  property  is  conveyed  to  husband 
and  w-ife  jointly,  and  there  are  no  limiting 
words  in  the  deed,  they  will  take  the  estate  as 
tenants  in  entirety.  *  *  *  But,  while  the 
general  rule  is  as  we  have  stated  it,  there  may 
be  conditions,  limitations,  and  stipulations  in 
the  deed  conveying  the  property  which  will 
defeat  the  operation  of  the  rule.  The  denial  of 
this  proposition  involves  the  affirmation  of  the 
proposition  that  a  grantor  is  powerless  to  limit 
or  define  the  estate  which  he  grants,  and  this 
would  conflict  with  the  fundamental  principle 
that  a  grantor  may  for  himself  determine  what 
estate  he  will  grant.     To  deny  this  right  would 


be  to  deny  to  parties  the  right  to  make  their 
own  contracts.  It  seems  quite  clear  upon  prin- 
ciple that  a  grantor  and  his  grantees  may  limit 
and  define  the  estate  granted  by  the  one  and 
accepted  by  the  other,  although  the  grantees 
be  husband  and  wife."  The  court  then  adopts 
the  language  of  Washburn  (1  Washb.  Real 
Prop.  674)  and  Tiedeman,  supra.  In  Edwards 
V.  Beall,  supra,  the  court  hold  that  when  lands 
are  granted  husband  and  wife  as  tenants  in 
common  they  will  hold  by  moieties,  as  other 
distinct  and  individual  persons  would  do.  If, 
as  contended  by  appellees,  the  rule  prevail  that 
the  same  words  which,  if  the  grantees  were  un- 
married, would  have  constituted  them  joint  ten- 
ants, will,  they  being  husband  and  wife,  make 
them  tenants  by  entireties,  then  it  would  re- 
sult as  a  logical  conclusion  that  husband  and 
wife  cannot  be  joint  tenants,  because  by  this 
rule,  words,  however  apt  or  appropriate  to  cre- 
ate a  joint  tenancy,  would,  in  a  conveyance  to 
husband  and  wife,  result  in  an  estate  by  en- 
tireties; joint  tenancy  would  be  superseded  or 
put  in  abeyance  by  the  estate  created  by  law, 
— tenancy  by  entirety.  The  result  of  such  rea- 
soning would  be  to  destroy  the  contractual  pow- 
er of  the  parties  where  this  relationship  be- 
tween the  grantees  is  shown  to  exist.  Any 
other  process  of  reasoning  would  carry  the  rule 
too  far,  and  we  must  hold  it  modified  to  the  ex- 
tent here  indicated.  Husband  and  wife,  not- 
withstanding tenancies  by  entirety  exist  as  they 
did  under  the  common  law,  may  take  and  hold 
lands  for  life,  in  joint  tenancy  or  in  common, 
if  appropriate  language  be  expressed  in  the  deed 
or  will  creating  it;  and  we  know  of  no  more 
apt  term  to  create  a  joint  tenancy  in  the  gran- 
tees in  this  estate  than  the  expression  "convey 
and  warrant  to  Daniel  S.  Wiggins  and  Laura 
Belle  Wiggins  in  joint  tenancy."  These  words 
appear  in  the  granting  clause  of  the  deed  con- 
veying the  land  in  question,  and  the  estate  ac- 
cepted and  held  by  the  grantees  is  thereby  lim- 
ited, and  they  hold,  not  by  entireties,  but  in 
joint  tenancy.  A  joint  tenant's  interest  in  prop- 
erty is  subject  to  execution.  Freem.  Ex'ns, 
125.  Judgment  reversed,  with  instructions  to 
the  circuit  court  to  sustain  the  demurrer  to 
each  paragraph  of  the  complaint. 


ESTATES  IX  COPARTNERSHIP. 


231 


DYER  V.  CLARK  et  al. 

(5  Mete.  5G2.) 

Supreme  Judicial   Court  of   Massachusetts. 

Suffolk  and  Nantucket,     March 

Term,  1843. 

Mr.  Pope,  for  plaintiff.  G.  T.  Curtis,  for  de- 
fendants. 

SHAW,  C.  J.  This  is  a  suit  in  equity  by 
the  surviving  partner  of  the  firm  of  Burleigh 
&  Dyer,  established  by  articles  of  copartner- 
ship, under  seal,  for  the  purpose  of  carrying  on 
the  business  of  distillers.  The  principal  ques- 
tion is  one  which  has  arisen  in  several  other 
cases,  and  is  this;  whether  real  estate,  pur- 
chased by  copartners,  from  partnership  funds, 
to  be  held,  used  and  occupied  for  partnership 
purposes,  is  to  be  deemed  in  all  respects  real 
estate,  in  this  commonwealth,  to  vest  in  thb 
partners  severally  as  tenants  in  common,  so 
that  on  the  decease  of  either,  his  share  will  de- 
scend to  his  heirs,  be  chargeable  with  his 
wife's  dower,  and  in  all  respects  held  and  treat- 
ed as  real  estate,  held  by  the  deceased  partner 
as  a  tenant  in  common;  or,  whether  it  shall  be 
regarded  as  quasi  personal  property,  so  as  to 
be  held  and  appropriated  as  personal  property, 
first  to  the  liquidation  and  discharge  of  the 
partnership  debts,  and  to  the  adjustment  of 
the  partnership  account,  and  payment  of  the 
amount  due,  if  any,  to  the  surviving  partner, 
before  it  shall  go  to  the  widow  and  heirs  of  the 
-\eceased  partner.  This  is  a  new  question  here, 
and  comes  now  to  be  decided,  for  the  first  time. 

There  are  some  principles,  bearing  upon  the 
result,  which  seem  to  be  well  settled,  and  may 
tend  to  establish  the  grounds  of  equity  and 
law,  upon  which  the  decision  must  be  made. 
It  is  considered  as  established  law,  that  part- 
nership property  must  first  be  applied  to  the 
payment  of  partnership  debts,  and  therefore 
that  an  attachment  of  partnership  property  for 
a  partnership  debt,  though  subsequent  in  time, 
will  take  precedence  of  a  prior  attachment  of 
the  same  property  for  the  debt  of  one  of  the 
partners.  It  is  also  considered,  that  however 
extensive  the  partnership  may  be,  though  the 
partners  may  hold  a  large  amount  and  great 
variety  of  property,  and  owe  many  debts,  the 
real  and  actual  interest  of  each  partner  in  the 
partnership  stock  is  the  net  balance  which  will 
be  coming  to  him  after  payment  of  all  the  part- 
nership debts  and  a  just  settlement  of  the  ac- 
count between  himself  and  his  partner  or  part- 
ners.    1  Ves.  Sr.  242. 

The  time  of  the  dissolution  of  a  partnership 
fixes  the  time  at  which  the  account  is  to  be 
taken,  in  order  to  ascertain  the  relative  rights 
of  the  partners,  and  their  respective  shares  in 
the  joint  fund.  The  debts  may  be  numerous, 
and  the  funds  widely  dispersed  and  difficult  of 
collection;  and  therefore  much  time  may 
elapse,  before  the  affairs  can  be  wound  up,  the 
del)ts  paid,  and  the  surplus  put  in  a  condition 
to  be  divided.  But  whatever  time  may  elapse 
before   the  final   settlement  can   be   practically 


made,  that  settlement,  when  made,  must  re- 
late back  to  the  time  when  the  partnership 
was  dissolved,  to  determine  the  relative  inter- 
ests of  the  partners  in  the  fund. 

When,  therefore,  one  of  the  partners  dies, 
which  is  de  facto  a  dissolution  of  the  partner- 
ship, it  seems  to  be  the  dictate  of  natural  equi- 
ty, that  the  separate  creditors  of  the  deceased 
partner,  the  widow,  heirs,  legatees,  and  all  oth- 
ers claiming  a  derivative  title  to  the  property  of 
the  deceased,  and  standing  on  his  rights,  should 
take  exactly  the  same  measure  of  justice,  as 
such  partner  himself  would  have  taken,  had 
the  partnership  been  dissolved  in  his  life-time; 
and  such  interest  would  be  the  net  balance  of 
the  account,  as  above  stated. 

Such  indeed  is  the  result  of  the  application 
of  the  well  known  rules  of  law,  when  the  part- 
nership stock  and  property  consist  of  personal 
estate  only.  And  as  partnerships  were  formed 
mainly  for  the  promotion  of  mercantile  transac- 
tions, the  stock  commonly  consisted  of  cash, 
merchandize,  securities,  and  other  personal 
property;  and  therefore  the  rules  of  law,  gov- 
erning that  relation,  would  naturally  be  framed 
with  more  especial  reference  to  that  species  of 
property.  It  is  therefore  held,  that  on  the  de- 
cease of  one  of  the  partners,  as  the  surviving 
partner  stands  chargeable  with  the  whole  of 
the  partnership  debts,  the  interest  of  the  part- 
ners in  the  chattels  and  choses  in  action  shall 
be  deemed  so  far  a  joint  tenancy,  as  to  enable 
the  surviving  partner  to  take  the  property  by 
survivorship,  for  all  purposes  of  holding  and 
administering  the  estate,  until  the  effects  are 
reduced  to  money,  and  the  debts  are  paid; 
though,  for  the  purpose  of  encouraging  trade, 
it  is  held  that  the  harsh  doctrine  of  the  jus  ac- 
crescendi,  which  is  an  incident  of  joint  tenancy, 
at  the  common  law,  as  well  in  real  as  in  per- 
sonal estate,  shall  not  apply  to  such  partner- 
ship property;  but,  on  the  contrary,  when  the 
debts  are  all  paid,  the  effects  of  the  partnership 
reduced  to  money,  and  the  purposes  of  the  part- 
nership accomplished,  the  surviving  partner 
shall  be  held  to  account  with  the  representa- 
tives of  the  deceased  for  his  just  share  of  the 
partnership  funds. 

Then  the  question  is,  whether  there  is  any 
thing  so  peculiar  in  the  nature  and  characteris- 
tics of  real  estate,  as  to  prevent  these  broad 
principles  of  equity  from  applying  to  it.  So 
long  as  real  estate  is  governed  by  the  strict 
rules  of  the  common  law,  there  would  be,  cer- 
tainly, great  difficulty  in  shaping  the  tenure  of 
the  legal  estate  in  such  form  as  to  accomplish 
these  objects.  Should  the  partners  take  their 
conveyance  in  such  mode  as  to  create  a  joint 
tenancy,  as  they  still  may,  though  contrary  to 
the  policy  of  our  law,  still  it  would  not  accom- 
plish the  purposes  of  the  parties;  first,  be- 
cause either  joint  tenant  might,  at  his  option, 
break  the  joint  tenancy  and  defeat  the  right  of 
survivorship,  by  an  alienation  of  his  estate,  or 
(what  would  be  still  more  objectionable)  the 
right  of  survivorship  at  the  common  law  would 
give  the  whole  estate  to  the  survivor,  without 


232 


ESTATES  IN  REAL  PROPERTY. 


liability  to  account,  and  thus  wholly  defeat  the 
claims  oC  the  separate  creditors,  and  of  the 
widow  and  heirs  of  the  deceased  partner. 

But  we  are  of  opinion,  that  the  object  may 
be  accomplished  in  equity,  so  as  to  secure  all 
parties  in  their  just  rights,  by  considering  the 
legal  estate  as  held  in  trust  for  the  purposes 
of  the  partnership;  and  since  this  court  has 
been  fully  empowered  to  take  cognizance  of  all 
implied  as  well  as  express  trusts,  and  carry 
them  into  effect,  there  is  no  difhculty,  but  on 
the  contrary  great  fitness,  in  adopting  the  rules 
of  equity  on  the  subject,  which  have  been 
adopted  for  the  like  purpose,  in  England  and 
in  some  of  our  sister  states.  And  it  appears  to 
us,  that  considering  the  nature  of  a  partnership, 
and  the  mutual  confidence  in  each  other,  which 
that  relation  implies,  it  is  not  putting  a  forced 
construction  upon  their  act  and  intent,  to  hold 
that  when  property  is  purchased  in  the  name 
of  the  partners,  out  of  partnership  funds  and 
for  partnership  use,  though  by  force  of  the 
common  law  they  take  the  legal  estate  as  ten- 
ants in  common,  yet  that  each  is  under  a  con- 
scientious obligation  to  hold  that  legal  estate, 
until  the  pui-poses  for  which  it  was  so  pur- 
chased are  accomplished,  and  to  appropriate  it 
to  those  pui-poses,  by  first  applying  it  to  the 
payment  of  the  partnership  debts,  for  which 
both  his  partner  and  he  himself  are  liable,  and 
until  he  has  come  to  a  just  account  with  his 
partner.  Each  has  an  equitable  interest  in  that 
portion  of  the  legal  estate  held  by  the  other, 
until  the  debts,  obligatory  on  both,  are  paid, 
and  his  own  share  of  the  outlay  for  partner- 
ship stock  is  restored  to  him.  This  mutual 
equity  of  the  parties  is  greatly  strengthened  by 
the  consideration,  that  the  partners  may  have 
contributed  to  the  capital  stock  in  unequal  pro- 
portions, or  indeed  that  one  may  have  advanced 
the  whole.  Take  the  case  of  a  capitalist,  who 
is  willing  to  put  in  money,  but  wishes  to  take 
no  active  concern  in  the  conduct  of  business, 
and  a  man  who  has  skill,  capacity,  integrity  and 
industry  to  make  him  a  most  useful  active 
partner,  but  without  property,  and  they  form 
a  partnership.  Suppose  real  estate,  necessary 
to  the  carrying  on  of  the  business  of  the  part- 
nership, should  be  purchased  out  of  the  capital 
stock,  and  on  partnership  account,  and  a  deed 
taken  to  them  as  partners,  without  any  special 
provisions.  Credit  is  obtained  for  the  firm,  as 
well  on  the  real  estate  as  the  other  property  of 
the  firm.  What  are  the  trae  equitable  rights 
of  the  partners,  as  resulting  from  their  pre- 
sumed intentions,  in  such  real  estate?  Is  not 
the  share  of  each  to  stand  pledged  to  the  other, 
and  has  not  each  an  equitable  lien  on  the  es- 
tate, requiring  that  it  shall  be  held  and  appro- 
priatetl,  first  to  pay  the  joint  debts,  then  to  re- 
pay the  partner  who  advanced  the  capital,  be- 
fore it  shaJl  be  applied  to  the  separate  use  of 
either  of  the  partners?  The  creditors  have  an 
interest,  indirectly,  in  the  same  appropriation; 
not  because  they  have  any  lien,  legal  or  equita- 
ble (2  Story,  P^q.  §  1253'),  upon  the  property 
itself;   but  on  the  equitable  principle,  which  de- 


termines that  the  real  estate,  so  held,  shall  be 
deemed  to  constitute  part  of  the  fund  from 
which  their  debts  are  to  be  paid,  before  it  can 
be  legally  or  honestly  diverted  to  the  private 
use  of  the  partners.  Suppose  this  tnist  is  not 
implied,  what  would  be  the  condition  of  the 
parties,  in  the  case  supposed,  in  the  various 
contingencies  which  might  happen?  Suppose 
the  elder  and  wealthy  partner  were  to  die:  The 
legal  estate  descends  to  his  heirs,  clothed  with 
no  trust  in  favor  of  the  surviving  partner:  The 
latter,  without  property  of  his  own,  and  relying 
on  the  joint  fund,  which,  if  made  liable,  is 
sufiicient  for  the  pui-pose,  is  left  to  pay  the 
whole  of  the  debt,  whilst  a  portion,  and  per- 
haps a  large  portion,  of  the  fund  bound  for  its 
payment,  is  withdrawn.  Or  suppose  the  youn- 
ger partner  were  to  die,  and  his  share  of  the 
legal  estate  should  go  to  his  creditors,  wife  or 
children,  and  be  withdrawn  from  the  partner- 
ship fund;  it  would  work  manifest  injustice  to 
him  who  had  furnished  the  fund  from  which  it 
was  purchased.  But  treating  it  as  a  trust,  the 
rights  of  all  parties  will  be  preserved;  the  legal 
estate  will  go  to  those  entitled  to  it,  subject 
only  to  a  trust  and  equitable  lien  to  the  surviv- 
ing partner,  by  which  so  much  of  it  shall  stand 
charged  as  may  be  necessary  to  accomplish  the 
<  purposes  for  which  they  purchased  it.  To  this 
extent,  and  no  further,  will  it  be  bound;  and 
subject  to  this,  all  those  will  take,  who  are  en- 
titled to  the  property;  namely,-  the  creditoi's, 
widow,  heirs,  and  all  others  standing  on  the 
rights  of  the  deceased  partner.  • 

It  may  happen  that  real  estate  may  be  sq 
purchased  by  partners,  and  out  of  partnership 
funds,  in  such  manner  as  to  preclude  such  im- 
plied trust,  and  indicate  that  the  parties  intend- 
ed to  purchase  property  to  be  held  by  them 
separately  for  their  separate  use;  as  where 
there  is  such  an  express  agreement  at  the  time 
of  the  purchase,  or  a  provision  in  the  articles 
of  copartnership,  or  where  the  price  of  such 
purchase  should  be  charged  to  the  partners  re- 
spectively, in  their  several  accounts  with  the 
farm.  This  would  operate  as  a  division  and 
distribution  of  so  much  of  the  funds,  and  each 
would  take  his  share  divested  of  any  implied 
trust.  If,  in  the  conveyance,  the  grantees 
should  be  described  as  tenants  in  common,  it 
would  be  a  circumstance  bearing  on  the  ques- 
tion of  intent,  though  perhaps  it  might  be  con- 
sidered a  slight  one;  because  those  words  would 
merely  make  them  tenants  in  common  of  the 
legal  estate,  which,  by  operation  of  law,  they 
would  be  without  them.  But,  as  we  have  al- 
ready seen,  such  legal  estate  is  not  at  all  in- 
compatible with  an  implied  trust  for  the  part- 
nership. 

The  result  of  this  part  of  the  case  seems  to 
us  to  be  this;  that  when,  by  the  a'greement 
and  understanding  of  partners,  their  capital 
stock  and  partnership  fund  consist,  in  whole  or 
in  part,  of  real  estate — inasmuch  as  it  is  a  well 
known  rule  governing  the  relation  of  partner- 
ship, that  neither  partner  can  have  an  ultimate 
and  beneficial  interest  in  the  capital  until  the 


ESTATES  IX  COPAKTXERSHIP. 


233 


■debts  are  paid  and  the  account  settled;  that 
both  rely  upon  such  rule  and  tacitly  claim  the 
benefit  of  it,  and  expect  to  be  bound  by  it;  the 
same  rule  shall  extend  to  real  estate.  The 
«jime  mutual  confidence,  which  governs  the  re- 
lation in  other  respects,  extends  to  this;  and, 
therefore,  when  real  estate  is  purchased  as 
part  of  the  capital,  whether  by  the  form  of  the 
conveyance  the  legal  estate  vests  in  them  as 
joint  tenants  or  tenants  in  common,  it  vests  in 
them  and  their  resptctive  heirs,  clothed  with  a 
trust  for  the  partners,  in  their  partnership  ca- 
pacity, so  as  to  secure  the  beneficial  interest  to 
jthem  until  the  purposes  of  the  partnersliip  are 
accomplished.  It  follows,  as  a  necessary  conse- 
quence, that  such  partnership  real  estate  can- 
not be  conveyed  away  and  alienated  by  one  of 
the  partners  alone,  without  a  breach  of  such 
trust;  and  that  such  a  conveyance  would  not 
be  valid  against  the  other  partner,  unless  made 
to  one  who  had  no  notice,  actual  or  construct- 
ive, of  the  trust.  But,  if  a  person  knows  that 
a  particular  I'eal  estate  is  the  partnership  prop- 
erty of  two  or  more,  and  he  attempts  to  acquire 
a  title  to  any  part  of  it  from  one  alone,  without 
the  knowledge  or  consent  of  the  other,  there 
seems  to  be  no  hardship  in  holding  that  he 
takes  such  title  at  his  peril,  and  on  the  responsi- 
bility of  the  person  with  whom  he  deals. 

But  we  think  the  same  conclusion  is  well  sup- 
ported by  authorities,  although  there  has  been 
some  diversity  of  opinion  amongst  the  earlier 
•cases. 

The  adjudged  cases  were  so  fully  examined 
by  the  counsel  in  their  arguments,  that  it  is 
unnecessary  to  state  them  in  detail.  The  prin- 
■ciples,  which  have  already  been  suggested  as 
the  grounds  on  which  we  decide  the  present 
•case,  were  applied  in  Phillips  v.  Phillips,  1 
IMylne  &  K.  649;  Broom  v.  Broom,  3  Mylne  & 
K.  443;  Sigourney  v.  Munn,  7  Conn.  11;  Hoxie 
v.  Carr.  1  Sumn.  173,  Fed.  Gas.  No.  G,S02.  In 
these  cases,  all  the  previous  decisions  on  the 
subject  were  carefully  considered.  See,  also,  3 
Kent,  Comm.  (4th  Ed.)  30-39;  1  Story,  Eq.  §§ 
G74,  (i"y,  2  Story,  Eq.  §  1207;  Colly.  Partn. 
7G;  Carj%  Partn.  27.  28;  Houghton  v.  Hough- 
ton, 11  Sim.  491. 

It  has  been  supposed  that  the  case  of  Good- 
TS'in  V.  Richardson,  11  Mass.  4G9,  stands  op- 
posed to  the  decision  now  made.  I  do  not  think 
it  does.  That  case  was  decided  in  1814,  before 
equity  powers  existed  in  this  commonwealth, 
on  the  general  subject  of  trusts.  It  was  in 
terms  a  question  as  to  the  vesting  of  the  real 
estate;  and  the  court  were  bound  to  decide  the 
case  for  the  defendant,  if  they  found,  upon  the 
facts,  that  the  estate  in  question  had  vested  in 
the  partners,  on  foreclosure,  as  tenants  in  com- 
mon. Had  they  decided  the  other  way,  they 
must  have  decided  that  partners,  taking  real 
estate  in  satisfaction  of  a  pai-tncrship  debt,  by 
foreclosing  a  mortgage,  would  hold  the  estate 
as  joint  tenants,  with  right  of  survivorship  at 
law,  without  liability  to  account — a  principle 
directly  opposed  to  the  Statutes  of  1785,  chap- 


ter 62,  respecting  joint  tenancy;  because  in  that 
case  and  at  that  time  the  real  estate  must  de- 
scend and  vest  according  to  the  rules  of  law, 
and  there  was  no  court  of  equity  competent  to 
require  the  surviving  partner  to  account  with 
the  representatives  of  the  deceased  party. 

In  that  case,  as  it  happened,  both  the  separate 
estate  and  the  partnership  estate  were  insol- 
vent, and  therefore  good  justice  would  have 
been  done,  in  deciding  that  the  plaintiff  should 
recover  for  the  benefit  of  the  partnership  cred- 
itors. But  the  court  were  deciding  upon  a  rule 
of  law,  which  must  apply  to  all  cases,  and  they 
could  not  have  decided  that  for  the  plaintiff 
without  holding  that  all  such  estate,  held  by 
partners,  shotild  be  deemed  joint  estate,  with  a 
right  of  survivorship  at  law,  and  without  liabil- 
ity to  account;  a  rule  opposed  to  the  plainest 
principles  of  equity,  and  to  the  spirit,  if  not  to 
the  letter,  of  the  statute  respecting  joint  ten- 
ancy. The  court  were  dealing  solely  with  a 
question  of  law,  in  determining  a  legal  estate, 
and  intimate  that  a  court  of  equity  might  make 
joint  real  estate  applicable,  as  personal,  to  the 
payment  of  partnership  debts.  We  consider, 
therefore,  that  that  decision  is  not  opposed  to 
the  decision,  upon  equitable  principles,  to  which 
we  now  propose  to  come. 

On  the  facts  of  the  present  case,  we  are  of 
opinion  that  the  real  estate  in  question  was  a 
part  of  the  capital  stock  purchased  out  of  the 
partnership  funds,  for  the  partnership  use,  and 
for  the  account  of  the  firm.  The  partners  en- 
tered into  articles,  as  distillers.  The  business 
required  a  large  building  and  fixtures,  which 
they  purchased  and  paid  for  in  part  out  of  the 
joint  funds,  and  gave  notes  in  the  partnership 
name  for  the  remainder  of  the  price,  and  the 
estate  was  regarded  by  them  as  partnership 
effects.  The  repairs  and  improvements  were 
also  charged  to  joint  account.  These  are  all 
decisive  indications  of  jomt  property. 

The  plaintiff  has  received  a  sum  in  rents  and 
profits  that  have  accrued  since  his  partner's 
death.  The  defendant,  Clark,  as  administrator 
of  Burleigh,  the  deceased  partner,  has  sold  an 
undivided  half  of  the  property  as  his,  under  a 
license,  and  with  the  assent  of  the  plaintiff. 
The  widow  joined  to  release  her  dower,  for  a 
nominal  sum.  But  we  cannot  perceive  that  the 
right  of  the  widow  is  distinguishable  from  that 
of  the  creditors  and  heirs  of  the  deceased  ixirt- 
ner.  As  far  as  this  estate  was  held  in  trust  by 
her  deceased  husband,  she  was  not  entitled  to 
dower.  For  all  beyond  that,  she  will  be  en- 
titled, because  he  held  it  as  legal  estate,  unless 
she  is  barred  by  her  release;  of  which  we  give 
no  opinion. 

The  plaintiff  is  entitled  to  a  decree  charging 
the  amount  of  rents  and  profits  in  his  hands, 
and  so  much  of  the  proceeds  of  the  sale  made 
by  the  administrator,  as  will  be  sufficient  to  dis- 
charge the.  balance  of  the  partnership  account; 
and  the  rest  of  the  proceeds  will  remain  in  the 
hands  of  Clark,  the  administrator  of  Burleigh, 
to  be  distributed  according  to  law. 


234 


INCORPOREAL  HEREDITAMENTS. 


POST  V.  PEARSALL.l 

(22  Wend.  425.) 

Court  of  Errors  of  New  York.      Dec,  1839. 

S.  A.  Foot,  for  plaintiff  in  error.  H.  P.  Ed- 
wards and  G.  Wood,  for  defendant  in  error. 

WALWORTH,  Ch.  Nearly  the  whole  law 
on  the  subject  of  customary  rights,  easements, 
and  public  highways,  and  places  in  the  nature 
of  highways  or  public  walks  for  health  or  recre- 
ation, and  also  of  dedications  for  charitable  or 
pious  purposes,  and  the  various  decisions  on 
these  subjects,  both  in  this  country  and  in 
England,  are  collected  in  the  very  learned  and 
elaborate  opinion  of  Mr.  Justice  Coweu,  who 
gave  the  reasons  for  the  decision  of  the  su- 
preme court  in  this  case,  and  in  the  case  of 
Pearsall  v.  Hewlett,  20  Wend.  Ill,  which  is 
also  before  us  for  decision  at  this  time.  Little, 
therefore,  remains  for  me  but  to  apply  the  le- 
gal principles  thus  collected,  to  the  facts  of  the 
case  under  consideration. 

The  plaintiff:  in  error  claims  a  prescriptive 
right  for  all  the  inhabitants  of  the  state,  or  the 
public  at  large,  to  enter  the  locus  In  quo,  which 
is  unquestionably  the  soil  and  freehold  of  Pear- 
sall, and  to  use  it  as  a  landing  place  to  deposit 
manure  brought  thither  by  water,  and  to  load 
and  unload  manure  and  other  materials  there- 
on. If  this  was  claimed  as  a  customary  right 
in  behalf  of  the  inhabitants  of  a  town,  hamlet 
(ir  other  local  district,  it  might  be  necessary  to 
decide  whether  a  right  to  deposit  manure  and 
other  materials  upon  the  laud  of  another,  and 
let  them  remain  there  until  the  depositor  could 
make  sale  thereof,  or  until  it  suited  his  con- 
venience to  remove  them,  was  such  an  ease- 
ment as  could  be  prescribed  for  as  a  customary 
right,  without  reference  to  any  dominant  ten- 
ement; or  whether  it  was  a  profit  a  prendre, 
or  such  an  interest  ir  the  soil  and  freehold  of 
another  as  could  only  be  prescribed  for  in  a  que 
estate.  In  the  great  contest  between  the  ball 
players  and  the  rabbits  relative  to  the  right  of 
deposit  and  the  privilege  of  scratching  within 
the  golfing  links  of  St.  Andrews,  which  case 
was  twice  before  the  house  of  lords  in  England, 
the  late  Lord  Chancellor  Eldon,  although  he 
amused  their  lordships  at  the  expense  of  the 
Scottish  judges,  the  magistrates  of  St.  An- 
drews, the  officers  and  students  of  the  college, 
and  of  the  golfing  society,  and  was  a  little 
smutty  withal,  had  in  that  case  a  strong  im- 
pression upon  his  mind  that  a  customary  servi- 
tude or  easement  could  not  be  supported,  which 
would  deprive  the  owner  of  the  servient  tene- 
ment of  the  whole  beneficial  use  of  his  prop- 
erty. See  Dempster  v.  Cleghorn,  2  Dow,  40. 
I  presume  that  strong  impression  was  founded 
upon  the  established  principle  of  the  common 
law,  that  a  custom  to  be  good,  must  be  reason- 
able; and  I  doubt  whether  any  member  of  this 
court    would    consider    a    custom     reasonable 


1  Concurring  opinions  of  Senators  Edwards, 
liivingston,  and  Vorp'.anck.  and  dissenting  opin- 
ion of  Senator  Furman,  omitted. 


which  should  allow  the  community  at  large  to- 
deposit  manure,  without  restriction  as  to  kind 
or  quantity,  upon  his  premises,  within  a  few  rods 
of  his  mansion;  and  to  suffer  it  to  remain 
there  until  it  suited  the  convenience  of  the  de- 
positors to  remove  it;  especially  if  it  should 
be  bone  manure,  a  commodity  with  which  it 
seems  the  farmers  in  the  neighborhood  of  the 
locus  in  quo  have  recently  fotind  it  profitable 
to  enrich  their  farms.  Indeed,  in  its  legal  ef- 
fect upon  the  rights  of  the  owner  of  the  soil,  it 
is  very  difficult  to  distinguish  the  occupancy 
claimed  in  this  case  from  the  temporary  occu- 
pancy by  fishing  huts,  which  was  claimed  in 
Cortelyou  v.  Van  Brundt,  2  Johns.  357.  But 
as  the  law  is  well  settled  that  a  customary  ac- 
commodation in  the  lands  of  another,  to  be 
good,  must  be  confined  to  the  inhabitants  of  a 
local  district,  and  cannot  extend  to  the  whole 
community  or  people  of  the  state,  the  right 
claimed  by  Post,  the  plaintiff  in  error,  cannot 
be  sustained  as  a  customary  right  or  easement 
consistently  with  the  rules  of  law. 

Nor  can  it  be  sustained  as  an  ordinary  ease- 
ment, founded  upon  a  presumed  grant  from, 
the  owner  of  the  premises  in  which  the  right 
or  easement  is  claimed.  Such  easements  are 
either  personal  and  confined  to  an  individual 
for  life  merely,  or  are  claimed  in  reference  to 
an  estate  or  interest  of  the  claimant  in  other 
lands  as  the  dominant  tenant;  for  a  profit  a 
prendre  in  the  land  of  another,  when  not  grant- 
ed in  favor  of  some  dominant  tenement,  can- 
not properly  be  said  to  be  an  easement,  but  an 
interest  or  estate  in  the  land  itself.  The  three- 
personal  servitudes  of  the  Roman  law,  use, 
usufruct  and  habitation,  and  which  are  still  re- 
tained in  the  laws  of  France  and  of  Spain  and 
of  Holland  were  not,  strictly  speaking,  servi- 
tudes, but  limited  estates  in  the  land;  and  they 
are  now  separately  provided  for  as  such  by  the 
Napoleon  Code:  one  article  of  which  expressly 
declares  that  servitudes  cannot  be  personal,  and 
that  they  can  only  exist  when  imposed  upon 
an  estate  and  for  the  benefit  of  an  estate.  Ar- 
ticle 686. 

Neither  can  the  right  claimed  in  this  case  be- 
sustained  upon  the  principles  upon  which  the 
dedication  of  highways  and  streets  for  the  pas- 
sage of  carriages  and  other  conveyances,  and' 
of  public  squares  in  cities  and  villages  as  prom- 
enades for  the  health  and  exercise  of  the  in- 
habitants, have  been  declared  and  adjudged  to 
be  public  rights.  Public  places  of  this  descrip- 
tion, as  well  as  public  highways,  were  well 
known  even  in  the  days  of  Justinian,  and  were 
protected  by  the  same  pretorian  interdict  from 
all  obstructions  which  could  interfere  with  the 
free  passage  of  the  people,  without  the  consent 
of  the  public  authorities.  Poth.  Pand.  de  Just, 
lib.  43,  tit.  8,  art.  1.  They  were  equally  well 
known  in  the  ancient  law  of  France,  and  em- 
braced the  public  squares  or  promenades,  where- 
the  whole  community  had  a  right  to  go;  and 
the  places  where  the  public  fairs  were  held.  14 
Guizot,  Report,  art.  "Public."  Although  at  the 
time  of  the  publication  of  the  laws  of  William 
the  Conqueror  there  were  but  four  great  roads- 


EASEMENTS. 


235 


in  England  called  the  king's  highways,  yet  no 
one  can  doubt  that  there  were,  even  at  that 
time,  innumerable  thoroughfares,  and  many 
squares  and  open  spaces,  which  had  been  dedi- 
cated to  the  use  of  the  people  at  large,  for  pas- 
sages and  promenades;  and  the  number  since 
that  time  has  probably  increased  an  hundred 
fold.  The  law  of  dedication,  therefore,  which 
was  applicable  to  thoroughfares,  was  properly 
applicable  to  market  places  and  promenades, 
although  they  were  not  highways  in  the  ordi- 
nary sense  of  the  term.  But  a  public  place  for 
landing  and  depositing  manure  must,  from  its 
Aery  nature,  be  confined  to  a  very  few  individ- 
uals; and  would  generally  be  permitted  as  a 
mere  neighborhood  accommodation,  while  the 
owner  of  the  land  on  which  it  was  deposited 
had  no  immediate  use  of  the  premises  himself. 
The  onlj^  right,  therefore,  which  would  be  like- 
ly to  be  acquired  by  long  user  would  be  a  right 
of  easement  or  accommodation  in  favor  of  the 
owners  of  the  farms,  for  the  use  of  which  the 
manure  had  from  time  to  time  been  brought; 
so  as  to  authorize  their  successors  in  such  own- 


ership to  prescribe  in  a  que  estate.  I  think, 
therefore,  it  would  be  most  unreasonable  to  ap- 
ply the  principles  of  dedication  to  such  a  case. 
A  dedication  for  pious  or  charitable  purposes 
dees  not  vest  a  legal  right  but  merely  creates  a 
pious  or  charitable  trust,  which  under  our  stat- 
ute relative  to  religious  corporations  is  turned 
into  a  legal  estate.  Dutch  Church  v.  Mott,  7 
Paige,  77;  Curd  v.  Wallace,  7  Dana,  102. 
Such  a  dedication,  therefore,  has  no  applica- 
bility to  the  case  under  consideration. 

The  rights  to  public  watering  places  on  Long 
Island  can  be  sustained  either  as  customary 
rights,  or  as  easements  appurtenant  to  the  es- 
tates which  have  been  supplied  with  water 
therefrom,  for  a  sufficient  time  to  raise  the  legal 
presumption  of  a  grant.  The  right  to  take  wa- 
ter from  the  pond  of  another  is  a  mere  ease- 
ment, and  not  a  profit  a  prendre.  Manning  v. 
Wasdale,  2  Harr.  &  W.  431. 

I  think  the  judgment  of  the  court  below  in 
this  case  was  not  erroneous,  and  that  it  ought 
to  be  aflSrmed. 


236 


INCORPOREAL  HEREDITAMENTS. 


BOWEN  et  al.  v.  CONNER. 

(6  Cush.  132.) 

Supreme  Judicial   Court  of  Massachusetts. 
Worcester.     Oct.  Term,  1S50. 

B.  F.  Thomas,  for  plaintiffs.  P.  C.  Bacon 
and  H.  D.  Stone,  for  defendant. 

SHAW,  C.  J.  This  is  an  action  on  the  case 
for  a  nuisance  occasioned  by  the  obstruction  of 
a  private  way,  specially  described  as  appurte- 
nant to  the  land  of  the  plaintiffs. 

The  question,  and  the  only  question  argued, 
does  not  appear  to  be  the  question  submitted  to 
the  court.  The  question  reserved  on  the  agreed 
statement  of  facts  is,  whether  the  building  de- 
scribed, standing  within  the  limits  of  the  way 
claimed,  was  an  obstruction.  The  only  question 
argued  was,  whether  by  force  and  effect  of  the 
deeds  referred  to,  and  the  rules  of  law  applica- 
ble to  them,  the  plaintiffs  had  the  right  of  way 
which  they  claim. 

The  facts  are,  that  the  plaintiffs  and  the  de- 
fendant were  tenants  in  common  of  a  small  par- 
cel of  land  in  Worcester,  bounding  on  one  side, 
on  a  public  highway  called  Pine  Meadow  street, 
about  100  or  130  feet,  and  extending  back  300 
or  400  feet,  the  plaintiffs  owning  one  moiety 
and  the  defendant  the  other.  On  the  9th  of 
March,  1S49,  they  made  partition  by  deed.  The 
parties  did  not  join  in  one  deed,  but  each  made 
a  deed  to  the  other.  These  deeds,  bearing  the 
same  dates,  each  reciting  that  the  estate  releas- 
ed is  part  of  an  estate  then  held  by  the  parties 
in  common,  and  each  reciting  the  simultaneous 
conveyance  of  the  other  as  a  consideration,  are 
to  be  taken  as  parts  of  one  a'nd  the  same  trans- 
action, and  considered  together  for  the  purposes 
of  construction.  The  plaintiffs  took  the  rear 
part  of  the  lot  as  their  property,  to  hold  in  sev- 
eralty, and  the  defendant  the  front  part,  proba- 
bly allowing  a  larger  quantity  to  the  rear  lot.  as 
a  balance  to  the  greater  value,  by  the  superfi- 
cial foot,  of  the  front  lot.  In  the  deed  of  Bowen 
and  Tower  to  Conner  of  the  front  lot,  after  the 
recital  and  granting  part  of  the  deed,  is  the  fol- 
lowing clause:  "Reserving  forever  a  right  of 
\^■ay  over  a  street,  which  said  Conner  (the  gran- 
tee) is  to  make  from  the  north-west  corner  of 
said  granted  lot  to  said  Pine  Meadow  road;  said 
street  to  be  thirty  feet  wide,  adjoining  the  west 
line  of  said  granted  lot."  The  question  is, 
whether  this  secured  to  the  plaintiffs  a  right  of 
way.  As  to  the  nature  of  that  right,  if  one 
was  well  created,  considering  the  circumstances, 
and  construing  the  deeds  together,  we  think  it 
was  a  right  secured  to  the  plaintiffs  and  their 
assigns,  as  owners  of  the  rear  lot,  and  there- 
fore was  a  right  of  way  annexed  to  the  estate 
before  owned  in  common,  but  then  set  off  in 
severalty  to  the  plaintiff's. 

It  is  found  in  the  statement  of  facts,  that  the 
rear  land  was  intended  to  be  used  for  house- 
lots;  but  as  that  fact  is  not  mentioned  in  either 
of  the  deeds,  and  remained  only  in  intention, 
we  have  placed  no  stress  upon  it.  There  is  an- 
other  consideration,    however,    of   some   impor- 


tance; in  referring  to  the  plan,  which  is  made  a 
part  of  the  case,  we  suppose  that  the  entire  land 
divided  was  surrounded  by  land  owned  by  other 
private  proprietors,  and  that  there  was  no  ac- 
cess to  any  highway  from  the  original  lot,  but 
upon  the  Pine  Meadow  road;  if  such  be  the 
case,  it  would  seem  that  by  established  prin- 
ciples, the  grantees  of  the  interior  lot  would 
have  had  a  way  of  necessity  over  the  front  lot, 
if  there  had  been  no  specific  reservation.  This 
strengthens  the  conclusion,  that  it  was  the  in- 
tention of  both  parties,  that  such  a  way  should 
be  established. 

It  was  argued,  that  according  to  the  English 
authorities,  an  easement,  as  a  way,  could  not  be 
created  by  a  mere  reservation.  We  have  not 
thought  it  necessary  to  review  the  English  au- 
thorities minutely  on  this  subject;  we  know 
there  is  much  nicety  in  the  technical  distinction 
between  an  exception  and  a  reservation.  Many 
of  the  cases  in  England  have  arisen  upon  the 
execution  of  powers  of  leasing,  with  certain 
precise  reservations  enumerated;  and  the  ques- 
tion is,  whether  the  lease  made  is  within  the 
power,  which  in  all  such  cases  is  to  be  con- 
strued strictly.  In  our  own  conveyancing,  this 
distinction  is  not  so  precisely  observed,  but  a 
clause  of  reservation  is  construed  to  be  an  ex- 
ception, if  that  will  best  effect  the  intent  of  the 
parties.  And  so  in  the  English  cases,  the  term 
reservation  is  often  construed  to  be  a  good  ex- 
ception. But  the  distinction  between  an  excep- 
tion and  a  reservation  is  often  very  uncertain. 
Co.  Lift.  47a;  Shep.  Touch.  80;  4  Cruise,  Dig. 
(Greenl.  Ed.)  271,  note  2;  Thompson  v.  Grego- 
ry, 4  Johns.  81.  But  in  a  case  like  this,  the 
right  being  established  by  a  formal  act,  to 
which  all  the  parties  interested  were  parties  and 
assenting,  we  consider  it  immaterial,  whether 
the  easement  for  the  way  intended  to  be  estab- 
lished is  technically  considered  as  founded  on  an 
exception,  a  reservation,  or  an  implied  grant. 

It  seems  by  the  authorities,  that,  had  there 
been  no  express  reservation  in  the  present  case, 
by  necessary  implication,  the  plaintiffs  would 
have  had  a  way  as  of  necessity.  But  this,  by 
the  better  authorities,  is  regarded  as  a  way  ere- 
ated  by  tacit  reservation,  or  exception.  Pom- 
fret  V.  Ricroft.  1  Wms.  Saund.  321,  note  6; 
Clark  V.  Cogge,  Cro.  Jac.  170;  Howton  v.  Frear- 
son,  8  Term  R.  50;  Bull.  N.  P.  74;  3  Kent, 
(^omm.  (4th  Ed.)  424;  4  Kent,  Comm.  (4th  Ed.) 
468;  2  Cruise,  Dig.  (Greenl.  Ed.)  28,  29;  Holmes 
V.  Goring,  2  Bing.  76.  If  a  way  would  be  es- 
tablished for  the  grantor,  under  such  circum- 
stances, on  the  ground,  that  the  law  will  pre- 
sume that  the  grantor  intended  to  reserve  or 
retain  to  himself  a  right  of  way  over  the  land 
granted,  for  the  use  of  the  estate  retained,  a 
fortiori  shall  the  grantor  be  entitled  to  that 
right,  when  the  intent  is  expressed  by  the  gran- 
tor, and  the  grantee  by  accepting  the  deed  with 
such  a  clause  inserted  assents  to  it. 

Even  if  these  two  deeds  were  not  be  con- 
strued together,  as  an  indenture,  there  is  abun- 
dant authority  to  show,  that  the  grantee,  by  his 
acceptance  of  a  deed-poll,  becomes  bound  by  all 
the    restrictions,    limitations,    reservations,   and 


RIGHTS  OF  WAY. 


237 


excoytions  contained  in  it.  Newell  v.  Hill,  2 
Mete.  (Mass.)  ISO. 

Upon  principle,  it  appears  to  us,  that  this 
right,  plainly  intended  by  both  parties  to  be  se- 
cured to  the  plaintiffs,  can  legally  be  secured  in 
the  manner  adopted  in  this  deed,  treating  the 
right  reserved  as  an  exception.  And  according 
to  a  well  known  rule  of  law,  extensively  applica- 
ble to  conveyancing,  if  a  deed  cannot  operate 
in  one  legal  mode,  to  effect  tlie  intention  of  the 
parties,  it  shall  operate  in  another  to  accomplish 
that  purpose,  if  it  can  be  done  without  violating 
any  principle  of  law. 

Prior  to  these  deeds,  the  plaintiffs,  as  tenants 
in  common,  had  a  right  to  pass  over  everj-  part 
of  this  land  at  their  pleasure.  And  each  tenant 
in  common  had  this  entire  right,  although  he 
had  not  the  entire  fee.  When,  therefore,  the 
grantors  conveyed  the  front  lot,  they  restricted 
themselves  from  any  further  right  to  pass  over 
the  whole  and  every  part,  and  limited  them- 
sdves  to  the  strip  thirty  feet  wide,  specially  de- 
scribed. This  was  a  part  of  the  right  previously 
enjoyed,  and  this  they  excepted  out  of  the  grant. 
Had  it  been  reserved  by  implication,  as  a  way 
of  necessity  which  would  have  been  general  and 
undefined,  it  would  have  been  competent  for  the 
Pivrties,  by  a  deed  like  the  present,  to  limit  and 
define  the  right  to  the  specific  thirty  feet,  and 
such  an  agreement  would  be  binding. 

But  were  the  case  less  clear  upon  principle, 
and  upon  the  authorities,  the  court  are  of  opin- 
ion,  that  the  law  is  settled  in  Massachusetts, 


by  a  series  of  decisions,  that  a  right  of  way  may 
be  as  well  created  by  a  reservation  or  exception, 
in  the  deed  of  the  grantor,  reserving  or  retain- 
ing to  himself  and  his  heirs  a  right  of  way, 
either  in  gross,  or  as  annexed  to  lands  owned  by 
him,  so  as  to  charge  the  lands  granted  with 
such  easement  and  servitude,  as  by  a  deed  from 
the  owner  of  the  land  to  be  charged,  granting 
such  way,  either  in  gross  or  as  appurtenant  to 
other  estate  of  the  grantee. 

The  rule  has  been  rather  assumed  and  taken 
for  granted,  than  discussed  and  formally  decid- 
ed; but  it  has  been  judicially  stated,  adopted, 
and  acted  upon  as  settled  law,  in  repeated  in- 
stances, of  which  it  will  be  necessary  to  cite  a 
few  only.  White  v.  Crawford,  10  Mass.  183; 
Atkins  V.  Bordman,  20  Pick.  291;  Atkins  v. 
Bordman.  2  Mete.  (Mass.)  457;  Newell  v.  Hill, 
Id.  ISO;  Mendell  v.  Delano,  7  Mete.  (Mass.) 
176.  The  last  case  was  stronger  thau  the  pres- 
ent; a  right  of  way  was  reserved  in  a  deed-poll, 
made  by  a  tenant  in  common,  charging  the  es- 
tate conveyed  with  a  servitude,  being  a  right  of 
way,  in  favor  of  his  separate  contiguous  estate; 
and  it  was  held  to  be  an  easement  annexed  to 
the  latter,  and  binding  upon  parties  and  privies 
claiming  under  the  deed  by  which  the  right  of 
way  was  reserved. 

Tlie  court  are,  therefore,  of  opinion,  that  the 
plaintiffs  had  the  right  of  way  alleged  to  be  dis- 
turbed by  the  defendant;  and  on  the  facts 
agreed,  judgment  must  be  entered  for  the  plain- 
tiffs, for  the  amount  of  damages  agreed  upon. 


23S 


INCORPOREAL  HEREDITAMENTS. 


THURSTON  V.  HANCOCK  et  al. 

(12   Mass.  220.) 

Supreme  Judicial  Court  of  Massachusetts,    Suf- 
folk. •  March  Term,  1815. 

Otis  &  Prescott,  for  plaintiff.  The  Solicitor 
General,  and  Mr.  Aylwin,  for  defendants. 

PARKER,  C.  J.  The  facts  agreed  present  a 
case  of  great  misfortune  and  loss,  and  one 
which  has  induced  us  to  look  very  minutely 
into  the  authorities,  to  see  if  any  remedy  exists 
in  law  against  those  who  have  been  the  imme- 
diate actors  in  what  has  occasioned  the  loss; 
but  after  all  the  researches  we  have  been  able 
to  make,  we  cannot  satisfy  ourselves  that  the 
facts  reported  will  maintain  this  action. 

The  plaintiff  purchased  his  land  in  the  year 
1802,  on  the  summit  of  Beacon  Hill,  which  has 
a  rapid  declivity  on  all  sides.  In  1804  he  erect- 
ed a  brick  dwelling-house  and  out-houses  on 
this  lot,  and  laid  his  foundation,  on  the  western 
side,  within  two  feet  of  his  boundary  line.  The 
inhabitants  of  the  town  of  Boston  were  at  that 
time  the  owners,  either  by  original  title  or  by 
an  uninterrupted  possession  for  more  than  sixty 
years,  of  the  land  on  the  hill  lying  westwardly 
of  the  lot  purchased  by  the  plaintiff.  On  the 
6th  of  August,  1811,  the  defendants  purchased 
of  the  town  the  land  situated  westwardly  of 
the  said  lot  owned  by  the  plaintiff;  and,  in  the 
same  year,  commenced  levelling  the  hill,  by  dig- 
ging and  carrying  away  the  gravel;  they  not  ac- 
tually digging  up  to  the  line  of  division  between 
them  and  the  plaintiff;  but  keeping  five  or  six 
feet  therefrom.  Nevertheless,  by  reason  of  the 
hill,  the  earth  fell  away,  so  as  in  some  places 
to  leave  the  plaintiff's  foundation  wall  bare,  and 
so  to  endanger  the  falling  of  his  house,  as  to 
make  it  prudent  and  necessary,  in  the  opinion 
of  skillful  persons,  for  the  safety  of  the  lives 
of  himself  and  his  family,  to  remove  from  the 
house;  and,  in  order  to  save  the  materials,  to 
take  down  the  house,  and  to  rebuild  it  on  on  a 
safer  foundation.  The  defendants  were  noti- 
fied of  the  probable  consequences  of  thus  dig- 
ging by  the  plaintiff,  and  were  warned  that  they 
would  be  called  upon  for  damages,  in  case  of 
any  loss. 

The  manner  in  which  the  town  of  Boston  ac- 
<5  aired  a  title  to  the  land,  or  to  the  particular 
use  to  which  it  was  appropriated,  can  have  no 
influence  upon  the  question;  as  the  fee  was  in 
the  town  without  any  restriction  as  to  the  man- 
ner in  which  the  land  should  be  used  or  occu- 
pied. 

It  is  a  common  principle  of  the  civil  and  of 
the  common  law,  that  the  proprietor  of  land, 
unless  restrained  by  covenant  or  custom,  has 
the  entire  dominion,  not  only  of  the  soil,  but  of 
the  space  above  and  below  the  surface,  to  any 
extent  he  may  choose  to  occupy  it. 

The  law,  founded  upon  principles  of  reason 
and  common  utility,  has  admitted  a  qualifica- 
tion to  this  dominion,  restricting  the  propri- 
etor so  to  use  his  own,  as  not  to  injure  the 
property  or  impair  any  actual  existing  rights  of 


another.  "Sic  utere  tuo  ut  alienum  non  laedas." 
Thus,  no  man,  having  land  adjoining  his  neigh- 
bour's which  has  been  long  built  upon,  shall 
erect  a  building  in  such  manner  as  to  interrupt 
the  light  or  the  air  of  his  neighbour's  house,  or 
expose  it  to  injury  from  the  weather  or  to  un- 
wholesome smells. 

But  this  subjection  of  the  use  of  a  man's  own 
property  to  the  convenience  of  his  neighbour  is 
founded  upon  a  supposed  preexisting  right  in 
his  neighbour  to  have  and  enjoy  the  privilege 
which  by  such  act  is  impaired.  Therefore  it  is, 
that,  by  the  ancient  common  law,  no  man  could 
maintain  an  action  against  the  owner  of  an 
adjoining  tract  of  land,  for  interrupting  the  pas- 
sage of  the  light  or  the  air  to  a  tenement  unless 
the  tenement  thus  affected  was  ancient,  so  that 
the  plaintiff  could  prescribe  for  the  privilege  of 
which  he  had  been  deprived;  upon  the  common 
notion  of  prescription,  that  there  was  formerly 
a  grant  of  the  privilege,  which  grant  has  been 
lost  by  lapse  of  time,  although  the  enjoyment 
of  it  has  continued. 

Now,  in  such  case  of  a  grant  presumed,  it 
shall  for  the  purposes  of  justice  be  further 
presumed  that  it  was  from  the  ancestor  of  the 
man  interrupting  the  privilege,  or  from  those 
whose  estate  he  has;  so  as  to  control  him  in 
the  use  of  his  own  property,  in  any  manner 
that  shall  interfere  with  or  defeat  an  ancient 
grant  thus  supposed  to  have  been  made.  This 
is  the  only  way  of  accounting  for  the  common 
law  principle  which  gives  one  neighbour  an  ac- 
tion against  another,  for  making  the  same  use 
of  his  property  which  he  has  made  of  his  own. 
And  it  is  a  reasonable  principle;  for  it  would  be 
exceedingly  unjust  that  successive  purchasers 
or  inheritors  of  an  estate  for  the  space  of  sixty 
years,  with  certain  valuable  privileges  attached 
to  it,  should  be  liable  to  be  disturbed  by  the  rep- 
resentatives or  successors  of  those  who  original- 
ly granted,  or  consented  to,  or  acquiesced  in,  the 
use  of  the  privilege. 

It  is  true,  that,  of  late  years,  the  courts  in 
England  have  sustained  actions  for  the  obstruc- 
tion of  such  privileges  of  much  shorter  dura- 
tion than  sixty  years.  But  the  same  principle 
is  preserved  of  the  presumption  of  a  grant. 
And,  indeed,  the  modern  doctrine,  with  respect  to 
easements  and  privileges,  is  but  a  necessary 
consequence  of  late  decisions,  that  grants  and 
title-deeds  may  be  presumed  to  have  been  made, 
although  the  title  or  privilege  claimed  under 
them  is  of  a  much  later  date  than  the  ancient 
time  of  prescription. 

The  plaintiff  cannot  pretend  to  found  his  ac- 
tion upon  this  principle;  for  he  first  became 
proprietor  of  the  land  in  1802,  and  built  his 
house  in  1804,  ten  years  before  the  commence- 
ment of  his  suit.  So  that,  if  the  presumption 
of  a  grant  were  not  defeated  by  showing  the 
commencement  of  his  title  to  be  so  recent,  yet 
there  is  no  case,  where  less  than  twenty  years 
has  entitled  a  building  to  the  qualities  of  an  an- 
cient building,  so  as  to  give  the  owner  a  right 
to  the  continued  use  of  privileges,  the  full  en- 
joyment of  which  necessarily  trenches  upon  his 


RIGHT  TO  LATERAL  SUPPORT. 


239 


aioighbour's  right  to  use  his  own  property  in 
the  way  he  shall  deem  most  to  his  advantage, 
A  man  who  purchases  a  house,  or  succeeds  to 
one,  which  has  the  marks  of  antiquity  about  it, 
may  well  suppose  that  all  its  privileges  of  right 
appertain  to  the  house;  and,  indeed,  they  could 
not  have  remained  so  long,  without  the  culpable 
negligence  or  friendly  acquiescence  of  those 
who  might  originally  have  had  a  right  to  hinder 
or  obstruct  them.  But  a  man  who  himself 
builds  a  house,  adjoining  his  neighbour's  land, 
ought  to  foresee  the  probable  use  by  his  neigh- 
bour of  the  adjoining  land;  and,  by  convention 
with  his  neighbour,  or  by  a  different  arrange- 
ment of  his  house,  secure  himself  against  future 
interruption  and  inconvenience. 

This  seems  to  be  the  result  of  the  cases  an- 
ciently settled  in  England,  upon  the  substance 
of  nuisance  or  interruption  of  privileges  and 
t'asi-ments;  and  it  seems  to  be  as  much" the  dic- 
tate of  common  sense  and  sound  reason,  as  of 
legal  authority. 

The  decisions  cited  by  the  counsel  for  the 
plaintiff,  in  support  of  this  action,  generally 
go  to  establish  only  the  general  principle,  that 
a  remedy  lies  for  one  who  is  injured  consequen- 
tially by  the  acts  of  his  neighbor  done  on  his 
own  property.  The  civil  law  doctrine  cited 
from  Domat  will  t|e  found,  upon  examination, 
to  go  no  further  than  the  common  law  upon 
the  subject.  For,  although  it  is  there  laid 
down,  that  new  works  on  a  man's  ground  are 
prohibited,  provided  they  are  hurtful  to  others 
who  have  a  right  to  hinder  them;  and  that 
the  person  erecting  them  shall  restore  things 
to  their  former  state,  and  repair  the  damages; 
from  whence,  probably,  the  common  law  rem- 
edy of  abating  a  nuisance  as  well  as  recovery 
of  damages;  yet  this  is  subsequently  explained 
and  qualified  in  another  part  of  the  same  chap- 
ter, where  it  is  said,  that,  if  a  man  does  what 
he  has  a  right  to  do  upon  his  own  land,  without 
trespassing  upon  any  law,  custom,  title,  or  pos- 
session, he  is  not  liable  to  damage  for  injuri- 
ous consequences;  unless  he  does  it,  not  for 
his  own  advantage,  but  maliciously;  and  the 
damages  shall  be  considered  as  casualties  for 
which  he  is  not  answerable. 

The  common  law  has  adopted  the  same  prin- 
ciple, considering  the  actual  enjoyment  of  an 
easement  for  a  long  course  of  years  as  estab- 
lishing a  right  Avhich  cannot  with  impunity  be 
impaired  by  him  who  is  the  owner  of  the  land 
adjoining. 

The  only  case  cited  from  common  law  author- 
ities, tending  to  show  that  a  mere  priority  of 
building  operates  to  deprive  the  tenant  of  an 
adjoining  lot  of  the  right  of  occupying  and  us- 
ing it  at  his  pleasure,  without  being  subjected 
to  damages,  if  by  such  use  he  should  injure  a 
building  previously  erected,  is  that  of  Slingsby 
V.  Barnard,  1  Rolle,  430.  Sir  John  Slingsby 
brought  his  action  on  the  case  against  Barnard 
and  Ball,  and  declared  that  he  was  seized  of  a 
dwelling-house  nuper  ediftcatus,  and  that  Bar- 
nard was  seized  of  a  house  next  adjoining;  and 
that  Barnard,  and  Ball  under  him,  in  making  a 


cellar  under  Barnanl's  house,  dug  so  near  the 
foundation  of  the  plaintiff's  house,  that  they 
undermined  the  same,  and  one  half  of  it  fell. 
Judgment  upon  this  declaration  was  for  the 
plaintiff,  no  objection  having  been  made  as  to 
the  right  of  action,  but  only  to  the  form  of  the 
declaration. 

The  report  of  this  case  is  very  short  and  un- 
satisfactory; it  not  appearing  whether  the  de- 
fendant confined  himself  in  his  digging  to  his 
own  land,  or  whether  the  house  then  lately 
built  was  upon  a  new  or  an  old  foundation.  In- 
deed, it  seems  impossible  to  maintain  that  case 
upon  the  facts  made  to  appear  in  the  report, 
without  denying  principles  which  seem  to  have 
been  deliberately  laid  down  in  other  books, 
equally  respectable  as  authorities. 

Thus,  in  Sid.  1G7,  upon  a  special  verdict  the 
case  was  thus:  A.,  having  a  certain  quantity 
of  land,  erected  a  new  house  upon  part  of  it, 
and  leased  the  house  to  B.  and  the  residue  of 
the  land  to  C,  who  put  logs  and  other  things 
upon  the  land  adjoining  said  house,  so  that  the 
windows  were  darkened,  &c.  It  was  holden 
that  B.  could  maintain  case  against  C.  for  this 
injury.  But  the  reason  seems  to  be,  that  C. 
took  his  lease  seeing  that  the  house  was  there, 
and  that  he  should  not,  any  more  than  the 
lessor,  render  the  house  first  leased  less  valua- 
ble by  his  obstructions.  It  was,  however,  de- 
cided in  the  same  case,  that,  if  one  seized  of 
land  lease  forty  feet  of  it  to  A.  to  build  upon, 
and  another  forty  feet  to  B.  to  build  upon,  and 
one  builds  a  house,  and  then  the  other  digs  a 
cellar  upon  his  ground,  by  which  the  wall  of 
the  first  house  adjoining  falls,  no  action  lies; 
and  so,  they  said,  it  was  adjudged  in  Shewry  v. 
Figott,  W.  Jones,  145,  for  each  one  may  make 
what  advantage  he  can  of  his  own.  The  prin- 
ciple of  this  decision  is,  that  both  parties  came 
to  the  land  with  equal  rights  in  point  of  time 
and  title;  and  that  he  who  first  built  his  house 
should  have  taken  care  to  stipulate  with  his 
neighbor,  or  to  foresee  the  accident  and  provide 
against  it  by  setting  his  house  sufficiently  with- 
in his  line  to  avoid  the  mischief.  In  the  same 
case  it  is  stated,  as  resolved  by  the  court,  that, 
if  a  stranger  have  the  land  adjoining  to  a  new 
house,  he  may  build  new  houses,  &c.,  upon  his 
land,  and  the  other  shall  be  without  remedy, 
when  the  lights  are  darkened;  otherwise,  when 
the  house  first  built  was  an  ancient  one. 

In  Rolle,  Abr.  5G5,  A.,  seized  in  fee  of  copy- 
hold estate,  next  adjoining  land  of  B.,  erects  a 
new  house  upon  his  copyhold  land,  and  a  part 
is  built  upon  the  confines  next  adjoining  the 
land  of  B.,  and  B.  afterwards  digs  his  land  so 
near  the  house  of  A.,  but  on  no  part  of  his 
land,  that  the  foundation  of  the  hou.se,  and 
even  the  house  itself,  fall;  yet  no  action  lies 
for  A.  against  B.,  because  it  was  the  folly  of  A. 
that  he  built  his  house  so  near  to  the  land  of 
B.  For  by  his  own  act  he  shall  not  hinder  B. 
from  the  best  use  of  his  own  land  that  he  can. 
And  after  verdict,  judgment  was  arrested. 
The  reporter  adds,  however,  that  it  seems  that 
a  man,  who  has  land  next  adjoining  my   land, 


240 


IXCORrOREAL  HEREDITAMENTS. 


cannot  dig  his  land  so  near  mine,  as  to  cause 
mine  to  slide  into  the  pit;  and,  if  au  action  be 
brought  for  this,  it  will  lie. 

Although,  at  first  view,  the  opinion  of  Rolle 
seems  to  be  at  variance  with  the  decision  which 
he  has  stated,  yet  they  are  easily  reconciled 
with  sound  principles.  A  man  in  digging  upon 
his  own  land  is  to  have  regard  to  the  position 
of  his  neighbour's  land,  and  the  probable  con- 
sequences to  his  neighbour,  if  he  digs  too  near 
his  line;  and  if  he  disturbs  the  natural  state 
of  the  soil,  he  shall  answer  in  damages;  but 
he  is  answerable  only  for  the  natural  and  nec- 
essary consequences  of  his  act,  and  not  for  the 
value  of  a  house  put  upon  or  near  the  line  by 
his  neighbour.  For,  in  so  placing  the  house, 
the  neighbour  was  in  fault,  and  ought  to  have 
taken  better  care  of  his  interest. 

If  this  be  the  law,  the  case  before  us  is  set- 
tled by  it;  and  we  have  not  been  able  to  dis- 
cover that  the  doctrine  has  ever  been  over- 
ruled, nor  to  discern  any.  good  reason  why  it 
should  be. 

The  plaintiff  purchased  his  land  in  1802.  At 
that  time  the  inhabitants  of  Boston  were  in 
possession  and  the  owners  of  the  adjoining  land 
now  owned  by  the  defendants.  The  plaintiff 
built  his  house  within  two  feet  of  the  western 


line  of  the  lot,  knowing  that  the  town,  or  those- 
who  should  hold  under  it,  had  a  right  to  build 
equally  near  to  the  line,  or  to  dig  down  into  the 
soil  for  any  other  lawful  purpose.  He  knew 
also  the  shape  and  nature  of  the  ground,  and 
that  it  was  impossible  to  dig  there  wiftiout 
causing  excavations.  He  built  at  his  peril;  for 
it  was  not  possible  for  him,  merely  by  building 
upon  his  own  ground,  to  deprive  the  other  par- 
ty of  such  use  of  his  as  he  should  deem  most 
advantageous.  There  was  no  right  acquired 
by  his  ten  years'  occupation,  to  keep  his  neigh- 
bour at  a  convenient  distance  from  him.  He 
could  not  have  maintained  an  action  for  ob- 
structing the  light  or  air;  because  he  should 
have  known,  that,  in  the  course  of  improve- 
ments on  the  adjoining  land,  the  light  and  air 
might  be  obstructed.  It  is,  in  fact,  damnum 
absque  injuria. 

By  the  authority  above  cited,  however,  it 
would  appear  that  for  the  loss  of,  or  injury  to, 
the  soil  merely,  his  action  may  be  maintained. 
The  defendants  should  have  anticipated  the 
consequences  of  digging  so  near  the  line;  and 
they  are  answerable  for  the  direct  consequen- 
tial damage  to  the  plaintiff,  although  not  for 
the  adventitious  damage  arising  from  his  put- 
ting his  house  in  a  dangerous  position. 


RIGHT  TO  SUBJACENT  SUPPORT. 


241 


JONES  v.  WAGNER  et  al. 
(66  Pa.  St.  420.) 
Supreme  Court  of  Pennsylvania.    Nov.  8,  1870. 
Error  to  district  court,  Allegheny  county. 

M.  W. 'Aeheson,  for  plaintiffs  in  error.  S. 
M.  Raymond  aiid  C.  B,  M.  Smith,  for  defend- 
ant in  error. 

THOMPSON,  C.  J.  The  piece  of  ground  out 
of  which  the  controversy  in  this  case  has  arisen, 
formerly  belonged  to  John  Ormsby's  estiite,  and 
in  the  i>artition  of  that  estate  in  November, 
1855,  the  minerals  in,  and  the  surface  of  the 
laud  were  separated  and  made  to  constitute 
two  separate  and  distinct  properties  or.  estates, 
without  any  restriction,  limitation  or  servitude 
imposed  on  either,  and  were  so  allotted  among 
two  of  Ormsby's  heirs.  The  plaintiff  claims 
title  to  the  surface  through  the  heir  to  whom  it 
was  allotted,  and  so  do  the  defendants  to  the 
minerals  from  another  heir  to  whom  they  were 
allotted. 

The  question  in  the  court  below  and  here,  is 
\\hether  the  latter  have  by  their  unrestricted 
title,  the  right  to  mine  and  take  out  all  the  coal 
underlying  the  surface,  without  liabiJity  for  in- 
jury thereto,  or  to  buildings  and  improvements 
thereupon  by  subsidence  or  otherwise.  The 
learned  judge  below  reserved  the  point  and  sub- 
mitted to  the  jury  the  question  of  injury;  to 
what  amount,  and  whether  it  arose  from  un- 
skilful or  negligent  mining  in  not  leaving  suffi- 
cient pillars  or  props  in  the  mine  to  sustain  in- 
tact the  surface.  On  this  question  the  jury 
found  for  the  plaintiff,  and  at  a  subsequent  day 
llie  court  ruletl  the  reserved  question  also  in 
liis  favor  and  entered  judgment  on  the  verdict, 
l-'rom  this  statement  it  will  appear,  that  the 
only  negligence  or  unskilfuluess  at  all  attributa- 
ble to  the  defendants,  if  any,  arose  from  not 
leaving  sufficient  pillars  of  coal  or  supports  to 
sustain  the  surface,  and  this  they  undoubtedly 
did  not,  most  probably  under  the  belief  that  all 
the  coals  in  the  mine  belonged  to  them  by  virtue 
of  their  purchase  and  title.  This  was  certainly 
true  with  the  exposition  of  such  a  right  given 
by  Baron  Parke  in  Harris  v.  Ryding,  5  Mees. 
&  W.  GO.  "I  do  not  mean  to  say,"  observed 
that  able  judge,  "that  all  the  coal  does  not  be- 
long to  the  defendants,  but  they  cannot  get  it 
without  leaving  proper  supports." 

The  right  of  supports,  ex  jure  naturjc,  which 
the  owner  of  the  soil  is  entitled  to  receive  from 
the  minerals  underneath,  has,  within  compara- 
tively a  few  years,  received  much  attention  in 
the  courts  in  England,  and  the  rule  deducible 
from  the  cases  in  all  the  courts,  the  house  of 
loi"ds,  exchequer  and  queen's  bench,  is,  that 
where  there  is  no  restriction  or  contract  to  the 
oontrarj-,  the  subteri-nnean  or  mining  property 
is  subservient  to  the  surface  to  the  extent  of 
sufficient  supports  to  sustain  the  latter,  or  in 
default,  there  is  liability  to  damages  by  the 
owners  or  workers  of  the  former  for  any  in- 
jury consequent  thereon  to  the  latter.  This  is 
fully  supported  by  Harris  v.  Kydiug,  5   Jlees. 

GATES,  K.  P.— 16 


&  W.  GO,  determined  at  Easter  term,  1839,  iu 
the  exchequer;  Humphries  v.  Brogden  (185U> 
1  Eng.  Law  &  Eq.  251,  in  the  queen's  bench 
before  Lord  Campbell,  C.  J.,  and  Patteson, 
Coleridge,  and  Erie,  JJ.  The  whole  question 
was  there  discussed  most  learnedly  and  ably 
by  the  Lord  C.  J.,  and  the  same  result  arrived 
at  as  had  been  in  the  court  of  exchequer,  supra, 
and  in  the  case  of  Earl  of  Glasgow  v.  Hurlet 
Alum  Co.  (house  of  lords,  in  1850)  8  Eng.  I^w 
&  Eq.  13.  There  are  many  other  cases  refer- 
red to  in  the  English  courts  to  the  same  effect, 
by  Rog.  Mines,  p.  455  et  seq.  Among  them  are 
Rowbotham  v.  Wilson,  8  H.  L.  Gas.  .348;  Pen- 
nington V.  Gallard,  9  Exch.  1,  for  the  principle 
stated  by  the  learned  author  at  page  4GT:  "Tlwt 
if  an  owner  of  lands  grant  a  lease  of  the  min- 
erals beneath  the  surface  with  power  to  work 
and  get  them  in  the  most  general  terms,  still 
the  lessee  must  leave  a  reasonable  support  for 
the  surface,  and  so  conversely,  where  the  min- 
erals are  demised  and  the  surface  is  retained  by 
the  lessor,  there  arises  a  prima  facie  inference 
at  common  law,  upon  every  such  demise,  that 
the  lessor  is  demising  them  in  such  a  nuinne-r 
as  is  consistent  with  the  retention  by  himself 
of  his  own  right  of  support."  These  citations 
prove  two  things,  viz.,  that  the  owner  of  a 
mineral  estate,  if  the  law  be  not  controlled  by 
the  conveyance,  owes  a  servitude  to  the  super- 
incumbent estate,  of  sufficient  supix»rts;  con- 
sequently the  failure  to  do  so  is  negligence,  and 
so  may  be  declared  upon.  Humphries  v.  Brog- 
den, supra. 

A  usage  to  mine  without  the  observance  of 
this  duty  by  defendants  must  have  been  so 
ancient  and  uniform  in  the  region  in  which  the 
property  is  situated,  as  to  amount  to  a  custom 
or  usage  capable  of  controlling  the  rule  of  the 
common  law  cited  above,  and  of  becoming  the 
law  itself.  One  element  of  such  a  custom 
would  be,  that  it  Is  so  ancient  "that  the  memoi-y 
of  man  runneth  not  to  the  contrary."  This 
could  not  be,  and  was  hardly  pretended  of  the 
locality  in  question.  Nor  is  It  likely  that  in  « 
business  like  mining  bituminous  coal,  found 
only  in  the  western  counties  of  the  state,  there 
ever  was  any  rule  there  other  than  that  which 
would  result  from  convenience. 

As  to  the  house  in  question  damaged,  it  un- 
doubtedly had  a  right  to  supports  as  incident  to 
the  ground  on  which  it  stood.  What  might  l>e 
the  consequence  of  building  in  an  unreasonable 
manner,  taking  into  view  the  mining  rights  be- 
neath, on  a  question  of  the  suOiciency  of  the 
supports,  does  not  arise  in  tliis  case  and  need 
not  be  decided. 

We  have  no  case  strictly  of  authority  iu  our 
books,  nor  do  I  find  any  in  the  books  of  our 
sister  states.  In  most  of  them  but  little  sub- 
terranean mining  exists,  and  in  others  the  ques- 
tion has  not  presented  itself  for  adjudication. 
In  none  of  the  cases  cited  by  the  learned  coun- 
sel from  our  state  reports,  is  the  question  de- 
cided or  intentionally  touched;  we  therefore 
must  rule  the  point  for  ourselves  for  the  first 
time.  The  English  cases  referred  to,  and  oth- 
ers whicli  might  be  referred  to,  emanate  from 


\2 


INCORPOREAL   HEREDITAMENTS. 


great  ability,  and  from  a  country  in  which  min- 
ing, its  consequences  and  effects,  are  more  prac- 
tical, and  the  experience  greater,  than  in  any 
other  country  of  which  we  possess  any  knowl- 
edge. We  think  it  safe,  therefore,  to  follow  its 
lead  in  this  matter,  and  hold  that  in  the  case  in 
band,  the  recovery  was  right,  predicated  as  it 
was  of  the  want  of  sufficient  supports  in  the 
mine  to  prevent  the  plaintiff's  ground,  house 
and  orchard,  from  injury  by  subsiding  into  the 
■cavity  made  in  the  earth  by  the  removal  of  the 
coal.  The  upper  and  underground  estates  being 
several,  they  are  governed  by  the  same  maxim 
which  limits  the  use  of  property  otherwise  situ- 
ated, "Sic  utere  tuo  et  alienum  non  laedas."    We 


have  no  doubt  but  all  the  evils  depreciated  by 
the  adoption  of  this  rule  will  disappear  under 
regulations  adapted  to  each  case  of  severance 
of  the  soil  from  the  minerals.  Contract  may 
devote  the  whole  minerals  to  the  enjoyment  of 
the  purchaser,  without  supports,  if  the  parties 
choose.  If  not,  the  loss  by  maintaining  pUlars 
or  putting  in  props  wUl  necessarily  come  out  of 
the  value  of  the  mineral  estate.  If  at  any  time 
the  public  necessities  may  demand  the  pillars  to 
be  removed  for  fuel,  we  may  safely  assume 
that  the  same  necessity  will  provide  some  rule 
which  will  be  satisfactory  in  such  a  crisis.  We 
think  the  case  was  well  decided  below,  and  that 
the  judgment  must  be  affirmed. 


RENTS. 


243 


SACHEVEREL  v.  FROGATE. 

(1  Vent.  IGl.) 
Court  of  King's  Bench.     IGTl. 

In  covenant,  the  plaintiff  declared,  that  Ja- 
cinth Sacheverel  seised  in  fee,  demised  to  the 
defendant  cei'tain  land  for  j'ears,  reserving  £120 
rent.  And  therein  was  a  covenant;  that  the 
defendant  should  yearly,  and  every  year,  dur- 
ing the  said  term,  pay  unto  the  lessor,  his  exec- 
utors, administrators  and  assigns  the  said  rent; 
and  sets  forth,  how  that  the  lessor  devised  the 
reversion  to  the  plaintiff,  and  for  £120  rent 
since  his  decease  he  brought  the  action. 

The  defendant  demanded  oyer  of  the  inden- 
ture, wherein  the  reservation  of  the  rent  was 
yearly  during  the  term  to  the  lessor,  his  execu- 
tors, administrators  and  assigns,  and  after  a 
covenant  prout  the  plaintiff  declared,  and  to 
this  the  defendant  demurred. 

It  was  twice  argued  at  the  bar,  and  was  now 
set  down  for  the  resolution  of  the  court,  which 
Hale  delivered  with  the  reasons. 

He  said  they  were  all  of  opinion  for  the  plain- 
tiff. For  what  interest  a  man  hath,  he  hath  it 
in  a  double  capacity,  either  as  a  chattel,  and 
so  transmissible  to  the  executors  and  adminis- 
trators, or  as  an  inheritance,  and  so  in  capacity 
of  transmitting  it  to  his  heir. 

Then  if  tenant  in  fee  makes  a  lease,  and  re- 
serves the  rent  to  him  and  his  executors,  the 
rent  cannot  go  to  them,  for  there  is  no  testa- 
mentary estate.  On  the  other  side,  if  lessee 
for  100  years  should  make  a  lease  for  40  years, 
reserving  rent  to  him  and  his  heirs,  that  would 
be  void  to  the  heir. 

Now  a  reservation  is  but  a  return  of  some- 
what back  in  retribution  of  what  passes;  and 
therefore  must  be  carried  over  to  the  party 
which  should  have  succeeded  in  the  estate  if 
no  lease  had  been  made,  and  that  has  been 
always  held,  where  the  reservation  is  general. 

So,  though  it  doth  not  properly  ere:;  a  fee, 
yet  'tis  a  descendible  estate;  because  it  comes 
in  lieu  of  what  would  have  descended;  there- 
fore constructions  of  reservations  have  been 
ever  according  to  the  reason  and  equity  of  the 
thing. 

If  two  joint-tenants  make  a  lease,  and  reserve 
the  rent  to  one  of  them,  this  is  good  to  both, 
unless  the  lease  be  by  indenture;  because  of 
the  estoppel,  which  is  not  in  our  case,  for  the 
executors  are  strangers  to  the  deed. 

'Tis  true,  if  A.  and  B.  join  in  a  lease  of  land, 
wherein  A.  hath  nothing,  reserving  the  rent  to 
A.  by  indenture,  this  is  good  by  estoppel  to  A. 
But  in  Earl  of  Clare's  Case  it  was  resolved, 
that  where  he  and  his  wife  made  a  lease  reserv- 
ing a  rent  to  himself,  and  his  wife  and  his  heirs, 
that  he  might  bring  debt  for  the  rent;  and  de- 
clare as  of  a  lease  made  by  himself  alone,  and 
the  reservation  to  himself;  for  being  in  the  case 
of  a  feme  covert  there  could  be  no  estoppel,  al- 
though she  signed  and  sealed  the  lease. 

There  was  an  indenture  of  demise  from  two 
joint-tenants  reserving  £20  rent  to  them  both; 
•'ine   only    sealed   and   delivered   the   deed,    and 


brought  dcl)t  for  the  rent,  and  declared  of  a 
demise  of  the  moiety,  and  a  reservation  of  £10 
rent  to  him.  And  resolved  that  he  might.  Be- 
tween Bond  v.  Cartwright,  2  Rolle,  Abr.  43:3, 
pi.  21.  And  in  the  Common  Pleas,  Pas.  40 
Eliz.,  tenant  in  tail  made  a  lease  reserving  a 
rent  to  him  and  his  heirs,  it  was  resolved  a 
good  lease  to  bind  the  entail,  for  the  rent  shall 
go  to  the  heir  in  tail  along  with  the  reversion, 
though  the  reservation  were  to  the  heirs  gen- 
erally. For  the  law  uses  all  industry  imagina- 
ble, to  conform  the  reservation  to  the  estate. 
Whitloek's  Case,  8  Coke,  G9b,  is  very  full  to 
this,  where  tenant  for  life,  the  remainder  over 
so  settled  by  limitation  of  uses,  with  power  to 
the  tenant  for  life  to  make  leases,  who  made 
a  lease  reserving  rent  to  him,  his  heirs  and  as- 
signs. 

Resolved,  that  he  in  the  remainder  might 
have  the  rent  upon  this  reservation. 

So  put  the  case,  that  lessee  for  100  years 
should  let  for  50,  reserving  a  rent  to  him  and 
his  heirs  during  the  term;  I  conceive  this  would 
go  to  the  executor.  'Tis  true,  if  the  lessor  re- 
served the  rent  to  himself,  'tis  held,  it  will  nei- 
ther go  to  the  heir  or  executor:  but  in  27  Hen. 
VIII.  p.  19,  where  the  reservation  is  to  him 
and  his  assigns,  it  is  said,  that  it  will  go  to  the 
heir.  And  in  the  case  at  bar  the  words  execu- 
tors and  administrators  are  void;  then  'tis  as 
much  as  if  reserved  to  him  and  his  assigns 
during  the  term,  which  are  express  words  de- 
claring the  intent,  and  must  govern  any  implied 
construction,  which  is  the  true  and  particular 
reason  in  this  case. 

The  old  books  that  have  been  cited  have  not 
the  words  during  the  term.  Vide  Lane,  2.j6. 
Richmond  v.  Butcher,  Cro.  Eliz.  217,  indeed  is 
judged  contrary  in  point,  but  that  went  upon  a 
mistaken  ground,  which  was  the  manuscript 
report  12  Edw.  II.  Whereas  I  suppose  the 
book  intended  was,  12  Edw.  III.,  Fitz.  Assize, 
86,  for  I  have  appointed  the  manuscript  of 
Edw.  II.  (which  is  in  Lincoln's  Inn  Library) 
to  be  searched,  and  there  is  no  such  case  in 
that  year  of  Edw.  II.  The  case  in  the  12 
Edw.  III.,  is  a  man  seised  of  two  acres,  let  one, 
reserving  rent  to  him,  and  let  the  other,  re- 
serving rent  to  him  and  his  heirs;  and  re- 
solved, that  the  first  reservation  should  deter- 
mine with  his  life,  for  the  antithesis  in  the 
reservation  mikes  a  strong  implication  that  he 
intended  so.  In  Wotton  and  Edwin's  Case,  5 
Cro.  Jac,  the  words  of  reservation  were  yield- 
ing and  paying  to  the  lessor,  and  his  assigns. 
And  resolved,  that  the  rent  determined  uiwn 
his  death.  In  that  case  there  wanted  the  ef- 
fectual and  operative  clause  during  the  term. 

The  case  of  Sury  v.  Brown,  is  the  same  with 
ours  in  the  words  of  reservation;  and  the  as- 
signee of  the  reversion  brought  debt,  and  did 
not  aver  the  Ufe  of  the  lessor.  And  the  opin- 
ion of  Jones,  Croke  and  Doderidge  was  for  the 
plaintiff.      Latch.   99. 

The  law  will  not  suffer  any  construction  to 
take  away  the  energy  of  these  words,  during 
the  term. 


244 


INCORPOREAL  HEREDITAMENTS. 


If  a  man  reserves  a  rent  to  him  or  his  heirs, 
'tis  void  to  the  heir.  2  Inst.  214a.  But  in 
Mallory's  Case,  5  Coke,  111b,  where  an  abbot 
reserved  a  rent  during  the  term  to  him  or  his 
successors,  it  was  resolved  good  to  the  successor. 

It  is  said  in  Brudnel's  Case,  5  Coke,  9a,  that 
if  a  lease  be  made  for  years,  if  A.  and  B.  so 
long  live,  if  one  of  them  dies,  the  lease  deter- 
mines, because  not  said,  if  either  of  them  so 
long  lives.  So  it  is  in  point  of  grant.  But  it 
is  not  so  in  point  of  reversion,  for  Pasch.  4  Jac. 
in  the  common  pleas  between  Hill  and  Hill,  the 


case  was,  a  copyholder  in  fee  (where  the  custom 
was  for  a  widow's  estate)  made  a  lease  by  li- 
cense, reserving  rent  to  him  and  his  wife  dur- 
ing their  lives  (and  did  not  say,  or  either  of 
them),  and  to  his  heirs:  it  was  resolved, 

First,  that  the  wife  might  have  this  rent, 
though  not  party  to  the  lease. 

Secondly,  that  though  the  rent  were  reserved 
during  their  lives,  yet  it  should  continue  for 
the  life  of  either  of  them;  for  the  reversion,  if 
possible,  will  attract  the  rent  to  it,  as  it  were  by 
a  kind  of  magnetism. 


TITLE. 


245 


KOHL  et  al.   v.   UNITED   STATES. 

(91  U.  S.  3G7.) 

Supreme    Court    of    the    United    States.    Oct., 
1875. 

E.  W.  Kittredge,  for  plaintiffs  in  error.  Ed- 
win B.  Smith,  Asst.  Atty.  Gen.,  for  the  United 
States. 

Mr.  Justice  STRONG  delivered  the  opinion 
of  the  court. 

It  has  not  been  seriously  contended  during  the 
argument  that  the  United  State«  government  is 
without  power  to  appropriate  lands  or  other 
property  within  the  states  for  its  own  uses,  and 
10  enable  it  to  perform  its  proper  functions. 
Such  an  authority  is  essential  to  its  independ- 
ent existence  and  i>erpetuity.  These  cannot  be 
preserved  if  the  obstinacy  of  a  private  person, 
or  if  any  other  authority,  can  prevent  the  ac- 
quisition of  the  means  or  instruments  by  which 
alone  governmental  functions  can  be  performed. 
The  powers  vested  by  the  constitution  in  the 
general  government  demand  for  their  exercise 
the  acquisition  of  lands  in  all  the  states.  These 
are  needed  for  forts,  armories,  and  arsenals, 
for  navy-yards  and  light-houses,  for  custom- 
houses, post-offices,  and  court-houses,  and  for 
other  public  uses.  If  the  right  to  acquire  prop- 
erty for  such  uses  may  be  made  a  barren  right 
by  the  unwillingness  of  property-holders  to  sell, 
or  by  the  action  of  a  state  prohibiting  a  sale  to 
the  federal  government,  the  constitutional 
grants  of  power  may  be  rendered  nugatory, 
and  the  government  is  dependent  for  its  prac- 
tical existence  upon  the  will  of  a  state,  or  even 
upon  that  of  a  private  citizen.  This  cannot  be. 
No  one  doubts  the  existence  in  the  state  govern- 
ments of  the  right  of  eminent  domain,— a 
right  distinct  from  and  paramount  to  the  right 
of  ultimate  ownership.  It  grows  out  of  the 
necessities  of  their  being,  not  out  of  the  tenure 
by  which  lands  are  held.  It  may  be  exercised, 
though  the  lands  are  not  held  by  grant  from 
the  government,  either  mediately  or  immediate- 
ly, and  indei>endent  of  the  consideration  wheth- 
er they  would  escheat  to  the  government  in 
case  of  a  failure  of  heirs.  The  right  is  the  off- 
spring of  political  necessity;  and  it  is  insep- 
arable from  sovereignty,  unless  denied  to  it  by 
its  fundamental  law.  Vatt.  c.  20,  34;  Bynk. 
lib.  2,  c.  15;  Kent,  Comm.  338-340;  Cooley, 
Const.  Lim.  584  et  seq.  But  it  is  no  more  nec- 
essary for  the  exercise  of  the  powers  of  a  stjite 
government  than  it  is  for  the  exerdse  of  the 
conceded  powers  of  the  federal  government. 
That  government  is  as  sovereign  within  its 
sphere  as  the  states  are  within  theirs.  True, 
its  sphere  is  limited.  Certain  subjects  only  are 
committed  to  it;  but  its  power  over  those  sub- 
jects is  as  full  and  complete  as  is  the  power  of 
the  states  over  the  subjects  to  which  their  sov- 
ereignty extends.  The  power  is  not  changed 
by  its  transfer  to  another  holder. 

But,  if  the  right  of  eminent  domain  exists  in 
the  federal  government,  it  is  a  right  which  may 

be  exercised  within  the  states,  so  far  as  is  nec- 


essary to  the  enjoyment  of  the  powers  confer- 
red upon  it  by  the  constitution.  In  Ableman  v. 
Booth,  21  How.  52:3,  Chief  Justice  Taney  de- 
scribed in  plain  language  the  complex  nature 
of  our  government,  and  the  existenc-e  of  two 
distinct  and  separate  sovereignties  within  the 
same  territorial  space,  each  of  them  restricted 
in  its  powers,  and  each,  within  its  sphere  of 
action  prescribed  by  the  constitution  of  the 
United  States,  independent  of  the  other.  Nei- 
ther is  under  the  necessity  of  applying  to  the 
other  for  permission  to  exercise  its  lawful  pow- 
ers. Within  its  own  si^here,  it  may  employ  all 
the  agencies  for  exerting  them  which  are  ap- 
propriate or  necessary,  and  which  are  not  for- 
bidden by  the  law  of  its  beinf.  When  the 
power  to  establish  post-offices  and  to  create 
courts  within  the  states  was  conferred  upon 
the  federal  government,  included  in  it  was  au- 
thority to  obtain  sites  for  such  offices  and  for 
court-houses,  and  to  obtain  them  by  such  means 
as  were  known  and  appropriate.  The  right  of 
eminent  domain  was  one  of  those  means  well 
known  when  the  constitution  was  adopted,  and 
employed  to  obtain  lands  for  public  uses.  Its 
existence,  therefore,  in  the  grantee  of  that 
power,  ought  not  to  be  questioned.  The  consti- 
tution itself  contains  an  implied  recognition  of 
it  beyond  what  may  justly  be  implied  from  the 
express  grants.  The  fifth  amendment  contains 
a  provision  that  private  property  shall  not  be 
taken. for  public  use  without  just  compensation. 
"What  is  that  but  an  implied  assertion,  that,  on 
making  just  compensation,  it  may  be  taken? 
In  Coolejs  Const.  Lim.  520,  it  is  said:  "So  far 
as  the  general  government  may  deem  it  im- 
portant to  appropriate  lands  or  other  property 
for  its  own  purposes,  and  to  enable  it  to  per- 
form its  functions, — as  must  sometimes  be  nec- 
essary in  the  case  of  forts,  light-houses,  and 
military  posts  or  roads,  and  other  conveniences 
and  necessities  of  government, — tlie  general 
government  may  exercise  the  authority  as  well 
within  the  states  as  within  the  territory  under 
its  exclusive  jurisdiction;  and  its  right  to  do  so 
may  be  supported  by  the  same  reasons  which 
support  the  right  in  any  case;  that  is  to  say, 
the  absolute  necessity  that  the  means  in  the 
government  for  performing  its  functions  and 
perpetuating  is  existence  should  not  be  liable 
to  be  controlled  or  defeated  by  the  want  of 
consent  of  private  parties  or  of  any  other  au- 
thority." We  refer  also  to  Trombley  v.  Hum- 
phrey. 23  Mich.  471;  10  Pet.  723;  Dickey  v. 
Turnpike  Co.,  7  Dana,  113;  McCullough  v. 
INIaryland,  4  Wheat.  420. 

It  is  true,  this  power  of  the  federal  govern- 
ment has  not  heretofore  been  exercised  ad- 
versely; but  the  non-user  of  a  power  does  not 
disprove  its  existence.  In  some  instances,  the 
states,  by  virtue  of  their  own  right  of  eminent 
domain,  have  condemned  lands  for  the  use  of 
the  general  government,  and  such  condemna- 
tions have  been  sustained  by  their  courts,  with- 
out, however,  denying  the  right  of  the  United 
States  to  act  independently  of  the  states.  Such 
was   the  ruling  in   Gilmer   v.   Lime   Point,    13 


24G 


TITLE. 


Cal.  229,  where  lands  were  condemned  by  a 
proceeding  in  a  state  court  and  under  a  state 
law  for  a  United  States  fortification.  A  sim- 
ilar decision  was  made  in  Burt  v.  Insurance 
Co.,  106  Mass.  356,  where  land  was  taken  un- 
der a  state  law  as  a  site  for  a  post-office  and 
sub-treasury  building.  Neither  of  these  cases 
denies  the  right  of  the  federal  government  to 
have  lands  in  the  states  condemned  for  its 
uses  under  its  own  power  and  by  its  own  ac- 
tion. The  questiou  was,  whether  the  state 
could  take  lands  for  any  other  public  use  than 
that  of  the  state.  In  Trombley  v.  Humphrey, 
23  Mich.  471,  a  different  doctrine  was  assert- 
ed, founded,  we  think,  upon  better  reason. 
The  proper  view  of  the  right  of  eminent  do- 
main seems  to  be,  that  it  is  a  right  belonging 
to  a  sovereignty  to  take  private  property  for  its 
own  public  uses,  and  not  for  those  of  another. 
Beyond  that,  there  exists  no  necessity;  which 
alone  is  the  foundation  of  the  i-ight.  If  the 
United  States  have  the  power,  it  must  be  com- 
plete in  itself.  It  can  neither  be  enlarged  nor 
diminished  by  a  state.  Nor  can  any  state  pre- 
scribe the  manner  in  which  it  must  be  exer- 
cised. The  consent  of  a  state  can  never  be  a 
condition  precedent  to  its  enjoyment.  Such 
consent  is  needed  only,  if  at  all,  for  the  trans- 
fer of  jurisdiction  and  of  the  right  of  exclusive 
legislation  after  the  land  shall  have  been  ac- 
quired. 

It  may,  therefore,  fairly  be  concluded  that 
the  proceeding  in  the  case  we  have  in  hand  was 
a  proceeding  by  the  United  States  government 
in  its  own  right,  and  by  virtue  of  its  own  emi- 
nent domain.  The  act  of  congress  of  March 
2.  1S72  (17  Stat.  39),  gave  authority  to  the 
secretary  of  the  treasury  to  purchaise  a  central 
rmd  suitable  site  in  the  city  of  Cincinnati,  Ohio, 
for  the  erection  of  a  building  for  the  accom- 
modation of  the  United  States  courts,  custom- 
house, United  States  depository,  post-office,  in- 
ternal-revenue and  pension  offices,  at  a  cost  not 
exceeding  $300,000;  and  a  proviso  to  the  act 
declared  that  no  money  should  be  expended  in 
the  purchase  until  the  state  of  Ohio  should 
cede  its  jurisdiction  over  tlie  site,  and  relin- 
quish to  tlie  United  States  the  right  to  tax  the 
property.  The  authority  here  given  was  to 
purchase.  If  that  were  all,  it  might  be  doubt- 
ed whether  the  right  of  eminent  domain  was 
intended  to  be  invoked.  It  is  true,  the  words 
"to  purchase"  might  be  construed  as  includ- 
ing the  power  to  acquire  by  condemnation; 
for,  technically,  purchase  includes  all  modes 
of  acquisition  other  than  that  of  descent.  But 
generally,  in  statutes  as  in  common  use,  the 
word  is  employed  in  a  sense  not  technical,  only 
as  meaning  acquisition  by  contract  between 
the  parties,  without  governmental  interference. 
That  congress  intended  more  than  this  is  evi- 
dent, however,  in  view  of  the  subsequent  and 
amendatory  act  passed  June  10,  1872,  which 
made  an  appropriation  "for  the  purchase  at 
private  sale  or  by  condemnation  of  the  ground 
for  a  site"  for  the  building.  These  provisions, 
connected  as  they  are,  manifest  a  clear  inten- 
tion to  confer  upon  the  secretary  of  the  treas- 


ury  power  to   acquire   the  grounds  needed   by 
the  exercise  of  the  national  right  of  eminent 
domain,    or   by    private    purchase,    at   his   dis- 
cretion.   Why   speak   of   condemnation   at   all, 
if  congress  had  not  in  view  an  exercise  of  the 
right  of  eminent  domain,  and  did  not  intend  to 
confer  upon  the  secretary  the  right  to  invoke  it? 
But  it  is  contended  on  behalf  of  the  plaintiffs 
in  error  that  the  circuit  court  had  no  jurisdic- 
tion of  the  proceeding.     There  is  nothing  in  the 
acts  of  1872,  it  is  true,  that  directs  the  process 
by  which  the  contemplated  condemnation  should 
be  effected,  or  which  expressly  authorizes  a  pro- 
ceeding in  the  circuit  court  to  secure  it.    Doubt- 
less  congress  might   have  pi-ovided  a  mode  of 
taking  the  land,   and  determining  the  compen- 
sation to  be  made,  which  would  have  been  ex- 
clusive of  all  other  modes.     They  might  have 
prescribed  in  what  tribunal  or  by  w^hat  agents 
the   taking  and  the  ascertainment  of  the  just 
compensation    should     be     accomplished.      The 
mode  might  have  been  by  a  commission,  or  it 
might  have  been  referred  expressly  to  the  cir- 
cuit court;    but  this,  we  think,  was  not  neces- 
sary.    The  investment  of  the  secretary  of  the 
treasury  with  power  to  obtain  the  land  by  con- 
demnation, without  prescribing  the  mode  of  ex- 
ercising the  power,  gave  him  also  the  power  to 
obtain  it  by  any  means  that  were  competent  to 
adjudge  a  condemnation.     The  judiciary  act  of 
1789   conferred   upon   the  circuit  courts   of   the 
United  States  jurisdiction  of  all  suits  at  com- 
mon law  or  in  equity,  when  the  United  States, 
or  any  officer  thereof,  suing  under  the  authority 
of  any  act  of  congress,  are  plaintiffs.     If,  then, 
a-  proceeding  to  take  land  for  public  uses  by  con- 
demnation may  be  a  suit  at  common  law,  juris- 
diction of  it  is  vested  in  the  circuit  court.     That 
it  is  a  "suit"  admits  of  no  question.     In  Wes- 
ton  V.    Charleston,    2   Pet.   464,    Chief   Justice 
Marshall,  speaking  for  this  court,  said:    "The 
term  ["suit"]  is  certainly  a  very  comprehensive 
one,  and  is  understood  to  apply  to  any  proceed- 
ing in  a  court  of  justice  by  which  an  individual 
pursues    that   remedy    which    the    law    aiiords. 
The  modes  of  proceeding  may  be  various;    but, 
if  a  right  is  litigated  in  a  court  of  justice,  the 
proceeding  by  which  the  decision  of  the  court  is 
sought  is  a  suit."     A  writ  of  prohibition  has, 
therefore,  been  held  to  be  a  suit;   so  has  a  writ 
of  right,  of  which  the  circuit  court  has  jurisdic- 
tion (Green  v.   Liter,  8  Cranch,   229);    so  has 
habeas    corpus.     Holmes  v.    Jamison,    14   Pet. 
564.     When,  in  the  eleventh  section  of  the  ju- 
diciary act  of   1789,   jurisdiction  of  suits  of  a 
civil  nature  at  common  law  or  in  equity  was 
given  to  the  circuit  courts,  it  was  intended  to 
embrace  not  merely   suits   which   the  common 
law  recognized  as  among  its  old  and  settled  pro- 
ceedings,  but  suits  in  which  legal  rights  were 
to    be    ascertained    and    determined    as   distin- 
guished from  rights  in  equity,  as  well  as  suits  in 
admiralty.    The  right  of  eminent  domain  always 
was  a  right  at  common  law.     It  was  not  a  right  in 
equity,  nor  was  it  even  the  creature  of  a  statute. 
The  time  of  its  exercise  may  have  been  prescrib- 
ed by  statute;  but  the  right  itself  was  superior  to 
any  statute.   That  it  was  not  enforced  through  the 


EMD^EKT  DOMAm. 


247 


agency  of  a  jury  is  immaterial;  for  many  civil 
as  well  as  criminal  proceedings  at  common  law 
were  without  a  jury.  It  is  difficult,  then,  to 
see  why  a  proceeding  to  take  land  in  virtue  of 
the  government's  eminent  domain,  and  deter- 
mining the  compensation  to  be  made  for  it,  is 
not,  within  the  meaning  of  the  statute,  a  suit  at 
common  law,  when  initiated  in  a  court.  It  is 
an  attempt  to  enforce  a  legal  right.  It  is  quite 
immaterial  that  congress  has  not  enacted  that 
the  compensation  shall  be  ascertained  in  a  ju- 
dicial proceeding.  That  ascertainment  is  in  its 
nature  at  least  quasi  judicial.  Certainly  no 
other  mode  than  a  judicial  trial  has  been  pro- 
vided. 

It  is  argued  that  the  assessment  of  property 
for  the  purpose  of  taking  it  is  in  its  nature  like 
the  assessment  of  its  value  for  the  purpose  of 
taxation.  It  is  said  they  are  both  valuations  of 
the  property  to  be  made  as  the  legislature  may 
prescribe,  to  enable  the  government,  in  the  one 
case,  to  take  the  whole  of  it,  and  in  the  other 
to  take  a  part  of  it  for  public  uses;  and  it  is 
argued  that  no  one  but  congress  could  prescribe 
in  either  case  that  the  valuation  should  be  made 
in  a  judicial  tribunal  or  in  a  judicial  proceeding, 
although  it  is  admitted  that  the  legislature 
might  authorize  the  valuation  to  be  thus  made 
in  either  case.  If  the  supposed  analogy  be  ad- 
mitted, it  proves  nothing.  Assessments  for  tax- 
ation are  specially  provided  for,  and  a  mode  is 
prescribed.  No  other  is,  therefore,  admissible. 
But  there  is  no  special  provision  for  ascertain- 
ing the  just  compensation  to  be  made  for  land 
taken.  That  is  left  to  the  ordinary  processes 
of  the  law;  and  hence,  as  the  government  is  a 
suitor  for  the  property  under  a  claim  of  legal 
right  to  take  it,  there  appears  to  be  no  reason 
for  holding  that  the  proper  circuit  court  has  not 
jurisdiction  of  the  suit,  under  the  general  grant 
of  jurisdiction  made  by  the  act  of  17S9. 

The  second  assignment  of  error  is,  that  the 
circuit  court  refused  the  demand  of  the  defend- 
ants below,  now  plaintiffs  in  error,  for  a  sep- 
arate trial  of  the  value  of  their  estate  in  the 
property.  They  were  lessees  of  one  of  the 
parcels  sought  to  be  taken,  and  they  demanded 
a  separate  trial  of  the  value  of  their  interest; 
but  the  court  overruled  their  demand,  and  re- 
quired that  the  jury  should  appraise  the  value 
of  the  lot  or  parcel,  and  that  the  lessees  should 
in  the  same  trial  try  the  value  of  their  lease- 
hold estate  therein.  In  directing  the  course  of 
the  trial,  the  court  required  the  lessor  and  the 
lessees  each  separately  to  state  the  nature  of 
their  estates  to  the  jury,  the  lessor  to  offer  his 
testimony  separately,  and  the  lessees  theirs,  and 
then  the  government  to  answer  the  testimony 
of  the  lessor  and  the  lessees;  and  the  court  in- 
structed the  jury  to  find  and  return  separately 
the  value  of  the  estates  of  the  lessor  and  the 
lessees.  It  is  of  this  that  the  lessees  complain. 
They  contend,  that  whether  the  proceeding  is 
to  be  treated  as  founded  on  the  national  right 
of  eminent  domain,  or  on  that  of  the  state,  its 
consent  having  been  given  by  the  enactment  of 
the  state  legislature  of  Feb.  15,  1873  (70  Ohio 
Laws,  p.  36,  §  1),  it  was  required  to  conform 


to  the  practice  and  proceedings  in  the  courts  of 
the  state  in  like  cases.  This  requirement,  it  is 
said,  was  made  by  the  act  of  congress  of  June 
1,  1S72.  17  Stat.  522.  But,  admitting  that 
the  court  was  bound  to  conform  to  the  practice 
and  proceedings  in  the  state  courts  in  like 
cases,  we  do  not  perceive  that  any  error  was 
committed.  Under  the  laws  of  Ohio,  it  was 
regular  to  institute  a  joint  proceeding  against 
all  the  owners  of  lots  proposed  to  be  taken 
(Giesy  v.  Railroad  Co.,  4  Ohio  St.  308);  but  the 
eighth  section  of  the  state  statute  gave  to  "the 
owner  oi;  owners  of  each  separate  parcel"  the-, 
right  to  a  separate  trial.  In  sach  a  case,  there- 
fore, a  separate  trial  is  the  mode  of  proceeding 
in  the  state  courts.  The  statute  treats  all  the 
owners  of  a  parcel  as  one  party,  and  gives  to 
them  collectively  a  trial  separate  from  the  trial 
of  the  issues  between  the  government  and  the 
owners  of  other  parcels.  It  hath  this  extent; 
no  more.  The  court  is  not  required  to  allow 
a  separate  trial  to  each  owner  of  an  estate  or 
interest  in  each  parcel,  and  no  consideration  of 
justice  to  those  owners  would  be  subserved  by 
it.  The  circuit  court,  therefore,  gave  to  the 
plaintiffs  in  error  all,  if  not  more  than  all,  they 
had  a  right  to  ask.  The  judgment  of  the  cir- 
cuit court  is  affirmed. 

Mr.  Justice  FIELD   (dissenting). 

Assuming  that  the  majority  are  correct  in  the 
doctrine  announced  in  the  opinion  of  the  court, — 
that  the  right  of  eminent  domain  within  the 
states,  using  those  terms  not  as  synonymous 
with  the  ultimate  dominion  or  title  to  property,, 
but  as  indicating  merely  the  right  to  take  pri- 
vate property  for  public  uses,  belongs  to  the  fed- 
eral government,  to  enable  it  to  execute  the 
powers  conferred  by  the  constitution, — and  that 
any  other  doctrine  would  subordinate,  in  impor- 
tant particulars,  the  national  authority  to  the- 
caprice  of  individuals  or  the  will  of  state  legisla- 
tures, it  appears  to  me  that  provision  for  the 
exercise  of  the  right  must  first  be  made  by  leg- 
islation. The  federal  courts  have  no  inherent 
jurisdiction  of  a  proceeding  instituted  for  the 
condemnation  of  property;  and  I  do  not  find 
any  statute  of  congress  conferring  upon  them 
such  authority.  The  judiciary  act  of  17S9  only 
invests  the  circuit  courts  of  the  United  States: 
with  jurisdiction,  concurrent  with  that  of  the 
state  courts,  of  suits  of  a  civil  nature  at  com- 
mon law  or  in  equity;  and  these  terms  have 
reference  to  those  classes  of  cases  which  are 
conducted  by  regular  pleadings  between  parties, 
according  to  the  established  doctrines  prevailing 
at  the  time  in  the  jurisprudence  of  England. 
The  proceeding  to  ascertain  the  value  of  prop- 
erty which  the  government  may  deem  neces- 
sary to  the  execution  of  its  powers,  and  thus 
the  compensation  to  be  made  for  its  appropria- 
tion, is  not  a  suit  at  common  law  or  in  equity, 
but  an  inquisition  for  the  ascertainment  of  a 
particular  fact  as  preliminary  to  the  taking; 
and  all  that  is  required  is  that  the  proceeding 
shall  be  conducted  in  some  fair  and  just  mode,, 
to  be  provided  by  law,  either  with  or  without 
the    intervention   of  a  jury,    opportunity    being 


2i8 


TITLE. 


afforded  to  parties  interested  to  present  evi- 
dence as  to  the  value  of  the  property,  and  to  be 
heard  thereon.  The  proceeding  by  the  states, 
in  the  exercise  of  their  right  of  eminent  domain, 
is  often  had  before  commissioners  of  assessment 
or  special  boards  appointed  for  that  purpose. 
It  can  hardly  be  doubted  that  congress  might 
provide  for  inquisition  as  to  the  value  of  prop- 
erty to  be  taken  by  similar  instrumentalities; 
and  yet,  if  the  proceeding  be  a  suit  at  common 
law,  the  intervention  of  a  jury  would  be  re- 
quired by  the  seventh  amendment  to  the  consti- 
tution. 

I  think  that  the  decision  of  the  majority  of 
the  court  in  including  the  proceeding  in  this 
case  under  the  general  designation  of  a  suit  at 
common  law,  with  which  the  circuit  courts  of 


the  United  States  are  invested  by  the  eleventh 
section  of  the  judiciary  act,  feoes  beyond  pre- 
vious adjudications,  and  is  in  conflict  with  them. 

Nor  am  I  able  to  agree  with  the  majority  in 
their  opinion,  or  at  least  intimation,  that  the 
authority  to  purchase  carries  with  it  authority 
to  acquire  by  condemnation.  The  one  supposes 
an  agreement  upon  valuation,  and  a  voluntary 
conveyance  of  the  property:  the  other  implies  a 
compulsory  taking,  and  a  contestation  as  to  the 
value.  Beekman  v.  Railroad  Co.,  3  Paige,  75; 
Railroad  Co.  v.  Davis,  2  Dev.  &  B.  465;  Will- 
yard  v.  Hamilton,  7  Ham.  (Ohio)  453;  Living- 
ston V.  Mayor,  etc.,  7  Wend.  85;  Koppikus  v. 
Commissioners,  16  Cal.  249. 

For  these  reasons,  1  am  compelled  to  dissent 
from  the  opinion,  of  the  court. 


GRANT  BY  UXITED  STATES. 


249 


MOORE  V.   ROBBINS. 

(96  U.  S.  530.) 

Supreme  Court  of  the  United  States.     Oct., 
1877. 

Error  to  the  supreme  court  of  the  state  of 
Illinois. 

Philip  Phillips,  for  plaintiff  in  error.  R.  E. 
Williams,  contra. 

Mr.  Justice  MILLER  delivered  the  opinion 
of  the  court. 

This  case  is  brought  before  us  by  a  writ  of 
-error  to  the  supreme  court  of  the  state  of  Illi- 
nois. 

In  its  inception,  it  was  a  bill  in  the  circuit 
court  for  De  Witt  county,  to  foreclose  a  mort- 
irajre  ffivon  by  Thomas  I.  Bunn  to  his  brother 
Lewis  Bunn,  on  the  sputh  half  of  the  south- 
•«ast  quarter  and  the  south  half  of  the  south- 
west quarter  of  section  27,  township  19,  range 
3  east,  in  said  county.  In  the  progress  of  the 
<;ase,  the  bill  was  amended  so  as  to  allege  that 
C.  H.  Moore  and  David  Davis  set  up  some 
•claim  to  the  land;  and  they  were  made  defend- 
ants, and  answered. 

Moore  said  that  he  was  the  rightful  owner 
•of  forty  acres  of  the  land  mentioned  in  the 
bill  and  mortgage,  to  wit,  the  south-west  quar- 
ter of  the  south-west  quarter  of  said  section, 
and  had  the  patent  of  the  United  States  giving 
him  the  title  to  it. 

Davis  answered  that  he  was  the  rightful 
owner  of  the  south-east  quarter  of  said  south- 
west quarter  of  section  27.  He  alleges  that 
John  P.  Mitchell  bought  the  land  at  the  public 
sale  of  lands  ordered  by  the  president  for  that 
-district,  and  paid  for  it,  and  had  the  receipt  of 
the  register  and  receiver,  and  that  it  was  after- 
awards  sold  under  a  valid  judgment  and  execu- 
tion against  Mitchell,  and  the  title  of  said 
Mitchell  came  by  due  course  of  conveyance  to 
him,  said  Davis. 

It  will  thus  be  seen,  that,  while  Moore  and 
Davis  each  assert  title  to  a  different  forty 
acres  of  land  covered  by  Bunn's  mortgage 
to  his  brother,  neither  of  them  claim  under  or 
in  privity  with  Bunn's  title,  but  adversely  to  it. 

But  as  both  parties  assort  a  right  to  the  land 
under  purchases  from  the  United  States,  and 
since  their  rights  depend  upon  the  laws  of  the 
United  States  concerning  the  sale  of  its  pub- 
lic lands,  there  is  a  question  of  which  this  court 
must  take  cognizance. 

As  regards  Moore's  branch  of  the  case,  it 
seems  to  us  free  from  difficulty. 

The  evidence  shows  that  the  forty  acres 
which  he  claims  was  struck  off  to  him  at  a  cent 
■or  two  over  $2.50  per  acre,  at  a  public  land 
sale,  by  the  officers  of  the  land  district  at  Dan- 
ville, 111.,  Nov.  15,  1855;  that  his  right  to  it 
was  contested  before  the  register  and  receiver 
by  Bunn,  who  set  up  a  prior  pre-emption  right. 
Those  officers  decided  in  favor  of  Bunn;  where- 
upon Mooi-e  appealed  to  the  commissioner  of 
•the  general  land  ullico,   who  reversed   the  deci- 


sion of  the  register  and  receiver,  and  on  this 
decision  a  patent  for  the  land  was  issued  to 
Moore,  who  has  it  now  in  his  possession. 

Some  time  after  this  patent  was  delivered  to 
Moore,  Bunn  appealed  from  the  decision  of  the 
commissioner  to  the  secretary  of  the  interior, 
who  revei-sod  the  commissioner's  decision  and 
confirmed  that  of  the  register  and  receiver,  and 
directed  the  patent  to  Moore  to  be  recalled,  an  1 
one  to  issue  to  Bunn.  But  Moore  refused  to  re- 
turn his  patent,  and  the  land  department  diil 
not  venture  to  issue  another  for  the  same  land; 
and  so  there  is  no  question  but  that  Moore  is 
vested  now  with  the  legal  title  to  the  land,  and 
was  long  before  this  suit  was  commenced.  Nor 
is  there,  in  looking  at  the  testimony  taken  be- 
fore the  register  and  receiver  and  that  taken 
in  the  present  suit,  any  just  foundation  for 
Bunn's  pre-emption  claim.  We  will  consider 
this  point  more  fully  when  we  come  to  the  Dav- 
is branch  of  the  case. 

Taking  this  for  granted,  it  follows  that 
Moore,  who  has  the  l'?gal  title,  is  in  a  suit  in 
chancery  decreed  to  give  it  up  in  favor  of  one 
who  has  neither  a  legal  nor  an  equitable  title 
to  the  land. 

The  supreme  court  of  Illinois,  before  whom  it 
was  not  pretended  that  Bunn  had  proved  his 
right  to  a  pre-emption,  in  their  opinion  in  this 
case  place  the  decree  by  which  they  held 
Bunn's  title  paramount  to  that  of  Moore  on 
the  ground  that  to  the  officers  of  the  land  de- 
partment, including  the  secretary  of  the  interi- 
or, the  acts  of  congress  had  confided  the  de- 
termination of  this  Class  of  cases;  and  the  de- 
cision of  the  secretary  in  favor  of  Bunn.  being 
the  latest  and  the  final  authoritative  decision 
of  the  tribunal  having  jurisdiction  of  the  con- 
test, the  courts  are  bound  by  it,  and  must  give 
effect  to  it.      Bobbins  v.  Bunn,  54  111.  48. 

Without  now  inquiring  into  the  nature  and 
extent  of  the  doctrine  referred  to  by  the  Illi- 
nois court,  it  is  very  clear  to  us  that  it  has  no 
application  to  Moore's  case.  While  conceding 
for  the  present,  to  the  fullest  extent,  that  when 
there  is  a  question  of  contested  right  between 
private  parties  to  receive  from  the  United 
States  a  patent  for  any  part  of  the  public  land, 
it  belongs  to  the  head  of  the  land  department 
to  decide  that  question,  it  is  equally  clear  that 
when  the  patent  has  been  awarded  to  one  of 
the  contestants,  and  has  been  issued,  deliver- 
ed, and  accepted,  all  right  to  control  the  ti- 
tle or  to  decide  on  the  right  to  the  title  has 
passed  from  the  land-office.  Not  only  has  it 
passed  from  the  land-office,  but  it  has  passed 
from  the  executive  department  of  the  govern- 
ment. A  moment's  consideration  will  show 
that  this  must,  in  the  nature  of  things,  be  so. 
We  are  speaking  now  of  a  case  in  which  the 
officers  of  the  department  have  acted  within 
the  scope  of  their  authority.  The  offices  of  reg- 
ister and  receiver  and  commissioner  are  created 
mainly  for  the  purpose  of  supervising  the  sales 
of  the  public  lands;  and  it  is  a  part  of  their 
daily  business  to  decide  when  a  party  has  by 
purchase,  by  pre-emption,  or  by  any  other  rec- 


250 


TITLE. 


oguized  mode,  established  a  right  to  receive 
from  the  government  a  title  to  any  part  of 
the  public  domain.  This  decision  is  subject  to 
an  appeal  to  the  secretary,  if  taken  in  time. 
But  if  no  such  appeal  be  taken,  and  the  patent 
issued  under  the  seal  of  the  United  States,  and 
signed  by  the  president^  is  delivered  to  and  ac- 
cepted by  the  party,  the  title  of  the  govern- 
ment passes  with  this  delivery.  With  the  title 
iwsses  away  all  authority  or  control  of  the  ex- 
ecutive department  over  the  land,  and  over  the 
title  which  it  has  conveyed.  It  would  be  as 
reasonable  to  hold  that  any  private  owner  of 
land  who  has  conveyed  it  to  another  can,  of  his 
own  volition,  recall,  cancel,  or  annul  the  in- 
strument which  he  has  made  and  delivered. 
If  fraud,  mistake,  error,  or  wrong  has  been 
done,  the  courts  of  justice  present  the  only 
remedy.  These  courts  are  as  open  to  the  Unit- 
ed States  to  sue  for  the  cancellation  of  the  deed 
or  reconveyance  of  the  land  as  to  individuals; 
and  if  the  government  is  the  party  injured,  this 
is  the  proper  course. 

"A  patent,"  says  the  court  in  U.  S.  v.  Stone, 
2  Wall.  525,  "is  the  highest  evidence  of  title, 
and  is  conclusive  as  against  the  government 
and  all  claiming  under  junior  patents  or  titles, 
until  it  is  set  aside  or  annulled  by  some  judicial 
tribimal.  In  England,  this  was  originally  done 
by  scire  facias;  but  a  bill  in  chancery  is  found 
a  more  convenient  remedy."  See,  also,  Hughes 
V.  U.  S.,  4  Wall.  232,  11  How.  .552. 

If  an  individual  setting  up  claim  to  the  land 
has  been  injured,  he  may,  under  circumstances 
presently  to  be  considered,  have  his  remedy 
against  the  party  who  has  wrongfully  obtained 
the  title  which  should  have  gone  to  him. 

But  in  all  this  there  is  no  place  for  the  fur- 
ther control  of  the  executive  department  over 
the  title.  The  functions  of  that  department 
necessarily  cease  when  the  title  has  passed 
from  the  government.  And  the  title  does  so 
pass  in  every  instance  where,  under  the  deci- 
sions of  the  officers  having  authority  in  the 
matter,  a  conveyance,  generally  called  a  pat- 
ent, has  been  signed  by  the  president,  and  seal- 
ed, and  delivered  to  and  accepted  by  the  gran- 
tee. It  is  a  matter  of  course  that,  after  this  is 
done,  neither  the  secretary  nor  any  other  ex- 
ecutive officer  can  entertain  an  appeal.  He  is 
absolutely  without  authority.  If  this  were  not 
so,  the  titles  derived  from  the  United  States, 
instead  of  being  the  safe  and  assured  evidence 
of  ownership  which  they  are  generally  supposed 
to  be,  would  be  always  subject  to  the  fluctuat- 
ing, and  in  many  cases  unreliable,  action  of  the 
land-office.  No  man  could  buy  of  the  grantee 
with  safety,  because  he  could  only  convey  sub- 
ject to  the  right  of  the  officers  of  the  govern- 
ment to  annul  his  title. 

If  such  a  power  exists,  when  does  it  cease? 
There  is  no  statute  of  limitations  against  the 
government;  and  if  this  right  to  reconsider 
and  annul  a  patent  after  it  has  once  become 
perfect  exists  in  the  executive  department,  it 
can  be  exercised  at  any  time,  however  remote. 
It   is   needless   to   pursue   the  subject  further. 


The  existence  of  any  such  power  in  the  land 
department  is  utterly  inconsistent  with  the 
universal  principle  on  which  the-Tnght  of  pri- 
vate property  is  founded. 

The  order  of  the  secretary  of  the  interior, 
therefore,  in  Moore's  case,  was  made  without 
authority,  and  is  utterly  void,  and  he  has  a 
title  perfect  both  at  law  and  in  equity. 

The  question  presented  by  the  forty  acres 
claimed  by  Davis  is  a  very  different  one. 
Here,  although  the  government  has  twice  sold 
the  land  to  different  persons  and  received  the 
money,  it  has  issued  no  patent  to  either,  and 
the  legal  title  remains  in  the  United  States.  It: 
is  not  denied,  however,  that  to  one  or  the  oth- 
er of  the  parties  now  before  the  court  this  title 
equitably  belongs;  and  it  is  the  purpose  of  the 
present  suit  to  decide  that  question. 

The  evidence  shows  that  on  the  same  day 
that  Moore  bought  at  the  public  land  sale  the 
forty  acres  we  have  just  been  considering, 
Mitchell  bought  in  like  manner  the  forty  acres 
now  claimed  by  Davis;  to  wit,  Nov.  15,  1S55. 
He  paid  the  sum  at  which  it  was  struck  off  to 
him  at  public  outcry,  and  received  the  usual 
certificate  of  purchase  from  the  register  and  re- 
ceiver. On  the  twentieth  day  of  February, 
1856,  more  than  three  months  after  Mitchell's 
purchase,  Thomas  I.  Bunn  appeared  before  the 
same  register  and  receiver,  and  asserted  a  right, 
by  reason  of  a  pre-emption  commenced  on  the 
eighth  day  of  November,  1855,  to  pay  for  the 
south  half  of  the  south-west  quarter  and  the 
south  half  of  the  south-east  quarter  of  section 
27,  which  includes  both  the  land  of  Moore  and 
Davis  in  controversy  in  this  suit,  and  to  receive 
their  certificates  of  purchase.  They  accepted 
his  money  and  granted  his  certificate.  A  con- 
test between  Bunn  on  the  one  side,  and  Moore 
and  Mitchell  on  the  other,  as  to  whether  Bunn 
had  made  the  necessary  settlement,  was  de- 
cided by  those  officers  in  favor  of  Bunn;  and 
on  appeal,  as  we  have  already  shown,  to  the 
commissioner,  this  was  reversed,  and  finally 
the  secretary  of  the  interior,  reversing  the  com- 
missioner, decided  in  favor  of  Bunn.  But  no 
patent  was  issued  to  Mitchell  after  the  com- 
missioner's decision,  as  there  was  to  Moore; 
and  the  secretary,  therefore,  had  the  authority, 
undoubtedly,  to  decide  finally  for  the  land  de- 
partment who  was  entitled  to  the  patent.  And, 
though  no  patent  has  been  issued,  that  decision 
remains  the  authoritative  judgment  of  the  de- 
partment as  to  who  has  the  equitable  right  to 
the  land. 

The  supreme  court  of  Illinois,  in  their  opinion 
in  this  case,  come  to  th?  conclusion  that  this 
final  decision  of  the  secretary  is  not  only  con- 
clusive on  the  department,  but  that  it  also  ex- 
cludes all  inquiry  by  courts  of  justice  into  the 
right  of  the  matter  between  the  parties. 

The  whole  question,  however,  has  been  since 
that  time  very  fully  reviewed  and  considered 
by  this  court  in  Johnson  t.  Towsley,  13  Wall. 
72.  The  doctrine  announced  in  that  case,  and 
repeated  in  several  cases  since,  is  this: 

That  the  decision  of  the  officers  of  the  land 


GRAXT  BY  UXITED  STATES. 


251 


department,  made  within  the  scope  of  their  au- 
thority on  questions  of  this  Itind,  is  in  general 
conclusive  everywhere,  except  when  reconsider- 
ed by  way  of  appeal  within  that  department; 
and  that  as  to  the  facts  on  which  their  decision 
is  based,  in  the  absence  of  fraud  or  mistake, 
that  decision  is  conclusive  even  in  courts  of 
justice,  when  the  title  afterwards  comes  in 
question.  But  that  in  this  class  of  cases,  as  in 
all  others,  there  exists  in  the  courts  of  equity 
the  jurisdiction  to  correct  mistakes,  to  relieve 
against  frauds  and  impositions,  and  in  cases 
where  it  is  clear  that  those  otticers  have,  by  a 
mistake  of  the  law,  given  to  one  man  the  land 
which  on  the  undisputed  facts  belonged  to  an- 
other, to  give  appropriate  relief. 

In  the  recent  case  of  Shepley  v.  Cowan,  91  U. 
S.  340,  the  doctrine  is  thus  aptly  stated  by  Mr. 
Justice  Field:  "The  officers  of  the  land  depart- 
ment are  specially  designated  by  law  to  receive, 
consider,  and  pass  upon  proofs  presented  with 
respect  to  settlements  upon  the  public  lands, 
with  a  view  to  secure  rights  of  pre-emption. 
If  they  err  in  the  construction  of  the  law  ap- 
plicable to  any  case,  or  if  fraud  is  practised  up- 
on them,  or  they  themselves  are  chargeable  with 
fraudulent  practices,  their  rulings  may  be  re- 
viewed and  annulled  by  the  courts  when  a  con- 
troversy arises  between  private  parties  founded 
upon  their  decisions;  but,  for  mere  errors  of 
judgment  upon  the  weight  of  evidence  in  a  con- 
tested case  before  them,  the  only  remedy  is  by 
appeal  from  one  officer  to  another  of  the  depart- 
ment." 

Applying  to  the  case  before  us  these  princi- 
ples, which  are  so  well  established  and  so  well 
understood  in  this  court  as  to  need  no  further 
argument,  we  are  of  opinion,  if  we  take  as 
proved  the  sufficiency  of  the  occupation  and 
improvement  of  Bunn  as  of  the  date  which  he 
alleged,  his  claim  is  fatally  defective  in  another 
respect  in  which  the  officers  of  the  land  depart- 
ment were  mistaken  as  to  the  law  which  gov- 
erned the  rights  of  the  parties,  or  entirely  over- 
looked it. 

In  the  recent  case  of  Atherton  v.  Fowler,  96 
U.  S.  513,  we  had  occasion  to  review  the  gener- 
al policy  and  course  of  the  government  in  dis- 
posing of  the  public  lands,  and  we  stated  that 
it  had  formerly  been,  if  it  is  not  now,  a  rule  of 
primary  importance  to  secure  to  the  govern- 
ment the  highest  price  which  the  land  would 
bring  by  offering  it  publicly  at  competitive 
sales,  before  a  right  to  any  part  of  it  could  be 
established  by  private  sale  or  by  pre-emption. 
In  the  enforcement  of  this  policy,  the  act  of 
September  14,  1841,  which  for  the  first  time 
established  the  general  principle  of  pre-emp- 
tion, and  which  has  remained  the  basis  of  that 
right  to  this  day,  while  it  allowed  persons  to 
make  settlements  on  the  public  lands  as  soon  as 
the  surveys  were  completed  and  filed  in  the  lo- 
on 1  offices,  affixed  to  such  a  settlement  two  con- 
ditions as  affecting  the  right  to  a  pre-emption. 
One  of  these  was  that  the  settler  should  give 
notice  to  the  land-office  of  the  district,  within 
thirty  days  after  settlement,  of  his  intention  to 
exercise  the  right  of  pre-emption,  and  the  other 


we  will  give  in  the  language  of  the  fourteenth 
section  of  that  act: 

"This  act  shall  not  delay  the  sale  of  any  of 
the  public  lauds  of  the  United  States  beyond 
the  time  which  has  been  or  may  be  appointed 
by  the  proclamation  of  the  president,  nor  shall 
any  of  the  provisions  of  this  act  be  available  to 
any  person  who  shall  fail  to  make  the  proof 
of  payment  and  file  the  affidavit  required,  be- 
fore the  commencement  of  the  sale  aforesaid." 
5  Stat.  457. 

There  can  be  no  misconstruction  of  this  pro- 
vision, nor  any  doubt  that  it  was  the  intention 
of  congress  that  none  of  the  liberal  provisions 
of  that  act  should  stand  in  the  way  of  a  sale 
at  auction  of  any  of  the  public  lands  of  a  given 
district  where  the  purchase  had  not  been  com- 
pleted by  the  payment  of  the  price  before  the 
commencement  of  the  sales  ordered  by  the  pres- 
ident's proclamation.  We  do  not  decide,  be- 
cause we  have  not  found  it  necessary  to  do  so, 
whether  this  provision  is  applicable  under  all 
the  pre-emption  laws  passed  since  the  act  of 
1841,  though  part  of  it  is  found  in  the  Revised 
Statutes  (section  2282),  as  part  of  the  existing 
law.  But  we  have  so  far  examined  all  those 
laws  enacted  prior  to  November,  1855,  the  date 
of  Mitchell's  purchase,  as  to  feel  sure  it  was  in 
full  operation  at  that  time.  The  act  of  March 
3,  1853,  extending  the  right  of  pre-emption  to 
the  alternate  sections,  which  the  government 
policy  reserved  in  its  numerous  grants  to  rail- 
roads and  other  works  of  internal  improve- 
ment, required  the  pre-emptor  to  pay  for  them 
at  $2.50  per  acre,  before  they  should  be  offered 
for  sale  at  public  auction.  10  Stat.  244.  This 
was  only  two  years  and  a  half  before  these 
lands  were  sold  to  Mitchell,  and  they  were 
parts  of  an  alternate  section  reserved  in  a 
railroad  grant.  That  statute,  in  its  terms, 
was  limited  to  persons  who  had  already  set- 
tled on  such  alternate  sections,  and  it  may  be 
doubted  whether  any  right  of  pre-emption  by 
a  settlement  made  afterwards  existed  under 
the  law.  But  it  is  unnecessary  to  decide  that 
point,  as  it  is  beyond  dispute  that  it  required 
in  any  event  that  the  money  should  be  paid  be- 
fore the  land  was  offered  for  sale  at  public 
auction. 

The  record  of  this  case  shows  that,  while 
Bunn's  pre-emption  claim  comes  directly  with- 
in the  provision  of  both  statutes,  they  were  ut- 
terly disregarded  in  the  decision  of  the  secre- 
tary of  the  interior,  on  which  alone  his  case 
has  any  foundation. 

We  have  no  evidence  in  this  record  at  what 
time  the  president's  proclamation  was  issued. 
or  when  the  sales  under  it  began  at  which 
Mitchell  purchased.  These  proclamations  are 
not  published  in  the  statutes  as  public  laws, 
and  this  one  is  not  mentioned  in  the  record. 
But  we  know  that  the  public  lands  are  never 
offered  at  public  auction  until  after  a  proclama- 
tion fixing  the  day  when  and  the  place  where 
the  sales  begin.  The  record  shows  that  both 
Moore  and  Mitchell  bought  and  paid  for  the  re- 
spective forty-acre  pieces  now  in  contest,  at 
public  auction.     That  they  were  struck  off  to 


252 


TITLE. 


them  a  few  cents  in  price  above  the  minimum 
of  $2.50,  below  which  these  alternate  sections 
could  not  be  sold,  and  that  this  was  on  the 
fifteenth  day  of  November,  1855.  These  pub- 
lic sales  were  going  on  then  on  that  day,  and 
how  much  longer  is  not  known,  but  it  might 
have  been  a  week,  or  two  weeks,  as  these  sales 
often  continue  open  longer  than  that. 

Bunn  states  in  his  application,  made  three 
months  after  this,  that  his  settlement  began  on 
the  8th  of  November,  1855.  It  is  not  apparent 
from  this  record  that  he  ever  gave  the  notice  of 
his  intention  to  pre-empt  the  land,  by  filing 
what  is  called  a  declaration  of  that  intention  in 
the  land-office.  There  is  a  copy  of  such  a  dec- 
laration in  the  record  accompanying  the  afii- 
davit  of  settlement,  cultivation,  and  qualifica- 
tion required  of  a  pre-emptor,  which  last  pa- 
per was  made  and  sworn  to  Feb.  20,  1856, 
when  he  proved  up  his  claim,  and  paid  for  and 
received  his  certificate.  There  is  nothing  to 
show  when  the  declaration  of  intention  was 
filed  in  the  oflice. 

Waiving  this,  however,  which  is  a  little  ob- 
scure in  the  record,  it  is  very  clear  that  Bunn 
"failed  to  make  proof  of  payment,  and  failed 
to  file  the  affidavit  of  settlement  required,  be- 
fore the  commencement  of  the  sale"  at  which 
Mitchell  bought.  The  statute  declares  that 
none  of  the  provisions  of  the  act  shall  be  avail- 
able to  any  person  who  fails  to  do  this.  The 
affidavit  and  payment  of  Bunn  were  made  three 
months  after  the  land  sales  had  commenced, 
and  after  these  lands  had  been  sold. 

The  section  also  declares  that  the  act  shall 
not  delay  the  sale  of  any  public  land  beyond 
the  time  which  has  been  or  may  be  appointed 
by  the  proclamation  of  the  president.     To  re- 


fuse Mitchell's  bid  on  account  of  any  supposed 
settlement,  even  if  it  had  been  brought  to  the 
attention  of  the  oflicers,  would  have  been  to  de- 
lay the  sale  beyond  the  time  appointed,  and 
would,  therefore,  have  been  in  violation  of  the 
very  statute  under  which  Bunn  asserts  his 
right. 

Whatever  Bunn  may  have  done  on  the  8th 
of  November,  and  up  the  15th  of  that  month, 
in  the  way  of  occupation,  settlement,  improve- 
ment, and  even  notice,  could  not  withdraw  the 
land  from  sale  at  public  auction,  unless  he  had 
also  paid  or  offered  to  pay  the  price  before  the 
sales  commenced. 

It  seems  quite  probable  that  such  attempt  at 
settlement  as  he  did  make  was  made  while  the 
land  sales  were  going  on,  or  a  few  days  before 
they  began,  with  the  purpose  of  preventing  the 
sale,  in  ignorance  of  the  provision  of  the  stat- 
ute which  made  such  attempt  ineffectual. 

At  all  events,  we  are  entirely  satisfied  that 
the  lands  in  controversy  were  subject  to  sale 
at  public  auction  at  the  time  Moore  and  Mitch- 
ell bid  for  and  bought  them;  that  the  sale  so 
made  was  by  law  a  valid  one,  vesting  in  them 
the  equitable  title,  with  right  to  receive  the 
patents;  and  that  the  subsequent  proceedings 
of  Bunn  to  enter  the  land  as  a  pre-emptor  were 
unlawful  and  void. 

It  was  the  duty  of  the  court  in  Illinois,  sitting 
as  a  court  of  equity,  to  have  declared  that  the 
mortgage  made  by  Bunn,  so  far  as  these  lands 
are  concerned,  created  no  lien  on  them,  because 
he  had  no  right,  legal  or  equitable,  to  them. 

The  decree  of  the  supreme  court  of  that  state 
must  be  reversed,  and  the  cause  remanded  to 
that  court  for  further  proceedings  in  accordance 
with  this  opinion;   and  it  is  so  ordered. 


BOUNDARIES. 


253 


CITY  OF  JOLIET  et  al.  v.  WERNER. 

(46  N.  E.  780.) 

Supreme   Court  of  Illinois.     April   3,   1897. 

Appeal  from  circuit  court,  Will  county; 
Dorrauce  Dibell,  .Judj^e. 

Suit  by  Charles  Werner  against  the  city  of 
Joliet  and  another.  Decree  for  coniplaiiiant. 
Defendants  appeal.    Affirnieil. 

C.  McNaughtou,  for  appellants.  E.  Phelps, 
for  appellee. 

MAGRUDER,  C.  J.  This  is  a  bill  filed  by 
appellee,  as  OAvuer  of  lot  3  and  the  east  half 
of  lot  2  of  Joel  A.  Matte.son"s  subdivision  of 
the  north  half  of  block  17  of  Bowen's  addi- 
tion to  Joliet,  for  the  purix)se  of  enjoining 
said  city  and  its  superintendent  of  streets 
from  talcing  any  proceedings  to  move  the 
sidewalk  in  front  of  appellee's  lots  north  of 
the  present  locatiou  of  said  sidewalk.  The 
bill  was  answered  by  the  appellants,  and  a 
decree  was  entered  in  favor  of  aitpeUee, 
granting  the  injunction  substantially  as 
prayed  for.  The  present  appeal  is  from  the 
decree  so  entered. 

The  question  in  controversy  relates  to  the 
location  of  the  north  line  of  Jefferson  street, 
upon  which  appellee's  lots  front.     The  side- 
walk in  front  of  the  lots  is  8  feet  wide,  rest- 
ing uix)n  a  stone  wall  on  the  south  side  there- 
of and  another  stone  wall  on  the  north  side 
thereof.     Under  this  sideAvalk  runs  a  sewer. 
The  stone  wall  on  the  north  side  of  the  side- 
walk was  built  as  far  back  as  1856  or  1857, 
and  upon  the  same  a  fence  was  at  that  time 
erected.     It  is  contended  by  apiiellants  that 
the  coa-rect  north  line  of  Jefferson  street  is 
8.3  feet  north  of  the  north  line  of  said  side- 
walk, while  appellee  contends  that  the  north 
line   of   said    sidewalk    is   the  correct   north 
line  of  Jefferson  street.     In  other  words,  the 
claim  of  the  city  is  that  the  north  line  of 
Jefferson  street  is  about  8  feet  north  of  the 
north   line   of   the  sidewalk,   while   appellee 
contends  that  said  strip,  8  feet  wide,  north 
of  the  north  line  of  the  sidewalk,  is  within 
his  inclosure,   and    is   his   property.     If   the 
sidewalk  were  extended  north  8.3  feet,  in  ac- 
cordance with  the  contention  of  the  city,  it 
would  not  only  take  a  strip  of  land,  6.4  feet 
wide,   between   the   south   line  of   appellee's 
house  and  the  north  line  of  the  sidewalk,  but 
it  would  also  take  nearly  2  feet  off  the  south 
side  of  appellee  s  house.     The  part  of  Jeffer- 
son street  lying  south  of  the  north  half  of 
block  17  runs  eastward  from  Michigan  street, 
on  the  west,  to  Eastern  avenue,  on  the  east. 
In  18.53,  when  appellee  bought  lot  3,  Jeffer- 
son street  ran  no  further  towards  the  east 
than  Michigan  street,  and  was  not  then  open 
from  Michigan  street  to  Ea.stern  avenue.     In 
the  fall  of  1853,  appellee  and  two  other  par- 
ties, whose  interests  he  very  soon  acquired, 
bought  the  lots  now  in  controversy  from  Joel 
A.    Matteson;    giving    their    notes    therefor, 


with  the  understanding  that  deeds  should  be 
made  upon  the  payment  of  the  notes.     Ap- 
pellee did  not  receive  his  deed  of  lot  3  from 
Matteson   until   September  19,  1856.     When 
these  lots  were  bought  of  Matteson,  he  had 
a  survey  made,  in  order  to  show  the  south 
line  of   the   lots  sold  by   him,  or  the   north 
line  of  what  was  to  be  Jefferson  street.     Up- 
on the  line  thus  surveyed  under  Matteson's 
order,   stakes  were  set;    and   when   he   sold 
the  lots  he  pointed  out  to  api>ellee  and  the 
other  purchasers  these  stakes,  as  indicating 
the  line  to  be  adopted  as  the  north  line  of 
the   street.     The    line    in    which    the    stakes 
were  thus  set  was  located  8  feet  and  3  inches 
south  of  what  would  have  been  the  north 
liue  of  Jefferson  street  if  that  part  of  Jef- 
ferson street  then  existing  west  of  Michigan 
street  had  been  extended  east  of  Michigan 
street.     The  line  thus  pointed  out  by  Matte- 
son to  appellee  and  the  other  purchasei-s,  and 
uix)n  which  the  stakes  had  been  set  by  the 
surveyor,  corresiwnds  with  the  line  which  is 
now  the  north  line  of  the  sidewalk  in  front 
of  appellee's  lots.     At  the  time  the  lots  were 
purchased  the  plat  of  Matteson's  subdivision 
of  the  north  half  of  block  17  had  not  been 
recorded.     The  plat  shows  upon  its  face  that 
it  was  made  on  December  9,  1854,  but  that 
it  was  not  acknowledged  until  the  12th  day 
of  March,  18.59,  and  not  recorded  until  March 
15,  1859.     After  the  purchase  of  his  lots,  in 
the  fall  of  18.53  and  in  March,  1854,  appellee 
and  the  other  purchasers  took  possession  of 
their  respective  lots,  and  began  the  erection 
of  houses  upon  them;    appellee's  house  being 
finished  in  May  or  June  of  1854.    Appellee 
has  lived  in  the  house  so  erected  by  him  from 
that  time  up  to  the  present  time,  or  over  40 
yeai-s  before  the  filing  of  the  bill  herein.    Not 
more  than  2  or  3  years  after  the  building  of 
his  house,  the  stone  wall  on  the  north  line  of 
the  sidewalk  was  erected,  and  the  fence  set 
up  on  top  of  it;    and,  as  we  understand  the 
evidence,  the  8  feet  and  3  inches  north  of 
this   fence   have   been   inclosed  by   appellee 
ever  since  that  time,— more  than  35  years. 
The  sidewalk  in  question  was  built  as  early 
as  1854  or  1855.     It  was  originally  con.struet- 
ed  by  appellee,  but  it  was,  by  ordinance,  ac- 
cepted by  the  city,  and  a  sidewalk  upon  the 
same  line  was  constructed  by  the  city.     The 
city  levied   and   collected   an   assessment   to 
pay  for  that  portion  of  the  w.ilk  built  by  its 
order.     The  city  directed  its  surveyor  to   su- 
perintend the  work  of  constructing  xhe  side- 
walk located  where  the  present  sidewalk  is 
located.     The  street  between  the  south  side 
of  the  sidewalk,  as  thus  originally  located, 
and  the  north  side  of  the  sidewalk  on  the 
south  side  of  Jefferson  street,  has  been  sev- 
eral  times  graveled   by   the  city.     Some  30 
years  ago  the  city  also  built  a  culvert  run- 
ning from  the  north  side  of  the  sidewalk,  as 
thus  located,  to  the  south  side  of  the  side- 
walk on  the  south  side  of  the  street. 

It    is   claimed   by    appellants   that    if   that 
portion  of  Jefferson  street  west  of  Michigan 


254 


TITLE. 


street  had  been  extended  or  continued  east- 
ward to  Eastern  avenue,  so  as  to  make  Jef- 
ferson street  between  Michigan  street  and 
Eastern  avenue  a  continuation  of  that  pai't 
of  Jefferson  street  which  was  west  of  Mich- 
igan street,  the  north  line  of  Jefferson  street 
would  be  8  feet  and  3  inches  north  of  the 
north  line  of  the  present  sidewalk,  and 
would  have  the  location  claimed  for  it  by 
the  city.  It  is  also  claimed  by  appellants 
that  their  contention  as  to  the  location  of 
the  north  line  of  Jefferson  street  is  sustained 
by  the  plat  of  Matteson's  subdivision  of  the 
north  half  of  said  block  17.  But  it  is  never- 
theless a  fact  that  appellee  and  the  other 
purchasers  named,  whose  interests  he  now 
holds,  took  possession  of  their  lots  and  built 
their  houses,  and  built  their  walls  and 
fences,  upon  the  line  pointed  out  by  their 
grantor,  Matteson,  who  then  owned  the 
ground,  as  being  the  north  line  of  Jefferson 
sti'eet,  and  in  which  the  stakes  by  which 
they  were  guided  were  set  up  by  Matteson's 
surveyor.  By  the  terms  of  the  act  then  in 
force,  "The  plat  or  map  when  made  out, 
certified,  acknowledged  and  recorded  *  *  * 
shall  be  deemed  in  law  and  equity  a  suffi- 
cient conveyance  to  vest  the  fee  simple  of 
all  such  parcel  or  parcels  of  land  as  are 
therein  expressed."  Gross'  St.  111.  1871,  p. 
102.  If,  therefore,  the  plat  of  Matteson's 
subdivision  vested  in  the  city  the  title  to 
Jefferson  street,  according  to  the  location 
and  dimensions  of  that  street  as  indicated 
upon  the  plat,  it  was  only  after  such  plat 
was  acknowledged  and  recorded.  But  ap- 
pellee's interest  was  acquired,  and  his  pos- 
session was  taken,  and  his  house,  wall,  and 
fence  were  erected,  in  the  manner  stated, 
some  six  years  before  the  plat  was  acknowl- 
edged or  recorded.  Even  if  the  surveyor 
employed  by  Mattos^on  made  a  mistake  in 
putting  the  stakes  8  feet  south  of  the  proper 
line,  still  such  error  could  not  be  corrected 
by  the  city,  more  than  40  years  after  ap- 
pellee so  acquired  his  title  and  obtained  his 
possession,  by  forcing  the  location  of  the 
sidewalk  8  feet  further  north,  to  the  proper 
line.  Matteson,  being  the  owner  of  the  land, 
had  the  right  to  manage  and  disiwse  of  it  as 
he  saw  proper,  and  had  a  right  to  locate 
the  street  where  he  saw  proper.  The  stakes, 
which  were  driven  in  the  line  pointed  out 
by  him,  and  made  by  his  surveyor,  were 
definite  and  fixed  monuments,  while  a  plat, 
indicating  courses,  distances,  and  quantities, 
is  but  a  description  or  evidence  assisting  in 
determining  the  monuments.  Where  a  par- 
ty lays  off  lots  on  his  own  ground,  which 
are  marked  by  stakes  or  other  visible  monu- 
ments, and  conveys  with  reference  to  such 
boundaries,  the  grantee  will  take  the  same 
accoi-ding  to  the  line  as  actually  run  and 
established,  although  the  grantor  may  have 
been  mistaken  as  to  the  correct  location  of 
the  line.  The  fact  of  such  mistake  affords 
no  reason  for  changing  the  boundary  es- 
tablished by  him  in  making  his  conveyance, 


and  such  a  change  woulJ  be  manifestly  un- 
just where  parties  have  acquired  rights  ex- 
tending over  a  period  of  more  than  40  years. 
Under  such  circumstances,  the  location  of 
the  street  as  it  was  originally  made,  and  as 
it  has  been  occupied  and  used  for  so  long  a 
period,  cannot  be  disregarded,  and  new  lines 
cannot  be  established.  A  grantee  has  a 
right  to  the  land  as  located  by  the  grantor. 
Lull  V.  City  of  Chicago,  68  111.  518;  City 
of  Mt.  Carmel  v.  McClintock,  155  111.  612, 
40  N.  E.  829;  Fisher  Y.  Bennehoff,  121  111. 
426,  13  N.  E.  150. 

We  are,  moreover,  of  the  opinion  that  the 
city  is  equitably  estopped  from  tearing  up 
the  present  sidewalk  and  erecting  it  further 
north  by  reason  of  its  acts  of  recognition  of 
the  present  location  of  the  sidewalk,  as  such 
acts  have  been  above  described.  Its  con- 
struction of  a  sidewalk  upon  the  line  of  the 
present  sidewalk,  its  acceptance  of  the  side- 
walk already  constructed  by  appellee,  the 
building  by  it  of  a  culvert  up  to  the  present 
line  of  the  sidewalk,  the  graveling  by  it  of 
the  street  along  the  present  line  of  the  side- 
walk, and  its  levy  of  an  assessment  for  the 
purpose  of  paying  the  cost  of  building  the 
walk  as  at  present  located,  are  such  posi- 
tive acts  as  work  an  estoppel.  While  it  can- 
not be  maintained  that,  as  respects  public 
rights,  municipal  corporations  are  within  or- 
d^inary  limitation  statutes,  yet  the  pa-inciple 
of  estoppel  in  pais  may  be  applied  to  such 
acts  by  a  municipal  corporation  as  have 
been  above  designated.  In  applying  the 
principle  of  an  estoppel  in  pais,  the  courts 
are  left  to  decide  the  question,  not  by  the 
mere  lapse  of  time,  but  by  all  the  circum- 
stances of  the  case,  and  to  hold  the  public 
estopped,  or  not,  as  right  and  justice  may  re- 
quire. Railroad  Co.  v.  City  of  Joliet,  79  111. 
25;  City  of  Peoria  v.  Johnston,  56  111.  45; 
City  of  Mt.  Carmel  v.  McClintock,  supra; 
Martel  v.  City  of  East  St.  Louis,  94  111.  60. 
"When  a  municipal  corporation  threatens  to 
remove  plaintift"'s  fences,  as  an  alleged  en- 
croachment upon  a  street,  plaintiff  having 
for  thirty  years  been  in  the  undisturbed 
possession  of  the  premises, — the  city  having 
used  no  portion  thei-eof  for  a  street,  and  of- 
fering no  compensation  to  plaintiff,  and  no 
means  of  adjusting  his  compensation  for  the 
proi>erty  to  be  talcen, — an  appropriate  case 
is  presented  for  relief  by  injunction."  High, 
Inj.  §  584.  A  city  may  be  restrained  from 
encroaching  upon  the  property  of  a  private 
citizen,  even  under  the  pretense  of  pre- 
venting the  obstruction  of  a  street.  Higli, 
Inj.  §§  349,  1247,  1272.  1274;  Carter  v.  City 
of  Chicago,  57  111.  283;  City  of  Peoria  v. 
Johnston,  supra. 

In  view  of  the  considerations  herein  pre- 
sented, we  are  of  the  opinion  that  the  decree 
of  the  court  below,  granting  a  perinanent 
injunction  against  the  removal  of  the  side- 
walk north  of  its  present  location,  was  prop- 
er. Accordingly  the  decree  of  the  circuit 
court  is  athrmed.     Affirmed. 


DELIVERY 


255 


MILLER   et   al.   v.    MEERS   ct   al. 
(40  N.  E.  577,  155  111.  284.) 
Supreme   Court  of   Illinois.     April    1,   1895. 
Error  to  circuit  court,  Will  county;    Dor- 
rance  Dibell,  Judge. 

Bill  by  America  Miller,  Arvilla  Witbrow, 
Editb  Gertrude  Bissell,  Alcyone  Bissell,  lone 
M.  Sings,  Martin  C.  BissoU,  and  William  Bis- 
sell against  Robert  Meers  and  Asa  F.  Mather 
(survivors  of  William  A.  Strong),  executors 
and  trustees  under  the  last  will  and  tts'ament 
of  Mai-tin  C.  Bissell,  deceased,  William  Grin- 
ton,  and  others.  Defendants  obtained  a  de- 
cree. Complainants  bring  error.  Reversed. 
Plaintiffs  in  error,  the  seven  children  of 
William  P.  Bissell,  filed  their  bill  in  equity 
in  the  circuit  court  of  Will  county  against  de- 
fendants in  error,  as  executors  and  tnistees 
under  the  last  will  of  Martin  C.  Bissell,  de- 
ceased, and  against  William  Griuton  and 
others,  to  compel  the  delivery  to  complain- 
ants of  a  deed  executed  to  them  by  said  Mar- 
tin, in  his  lifetime,  for  certain  real  estate 
situated  in  Joliet,  called  the  "Bissell  Hotel 
Property,"  and  to  confirm  and  establish  the 
title  to  said  property  in  said  plaintiffs.  Wil- 
liam P.  Bissell,  also,  was  made  defendant  to 
the  bill.  The  executore  filed  a  cross  bill  to 
compel  the  cancellation  and  delivery  to  them 
of  said  deed,  and  also  of  a  life  lease  executed 
at  the  same  time  by  said  Martin  to  said  Wil- 
liam P.  Bissell  and  wife.  Issues  were  made 
on  the  bill  and  cross  bill,  and  on  a  hearing  the 
circuit  court  decreed  that  the  bill  be  dis- 
missed, and  that  the  relief  prayed  by  the 
cross  bill  be  gi-auted,  and  that  the  complain- 
ants pay  the  costs.  This  writ  of  error  is 
brought  by  the  complainants  to  reverse  that 
decree. 

The  principal  facts  set  up  in  the  pleadings 
and  established  by  the  proofs  are,  in  sub- 
stance, as  follows:  Martin  C.  Bissell,  the  own- 
er of  the  property  in  question,  resided  in  Jol- 
iet, and  was  a  man  of  considerable  wealth. 
His  wife  was  living,  but  they  had  no  children. 
He  had  permitted  his  brother  William  P.  Bis- 
sell, the  father  of  plaintiffs  in  eiTor,  who  was 
possessed  of  small  means,  to  occupy  and  run 
the  hotel  property  for  a  number  of  years  upon 
terms  disclosed  only  by  the  testimony  of  said 
William,  held  by  the  court  to  be  incompetent. 
The  evidence  does  not,  however,  disclose  that 
William  had  ever  paid,  or  agreed  to  pay,  any 
rent.  In  1875,  while  William,  with  his  wife 
and  three  minor  children,  were  thus  occupy- 
ing the  property,  his  adult  children  having 
established  themselves  in  other  parts  of  the 
country,  Martin  and  his  wife  executed  and 
acknowledged  a  warranty  deed  of  the  hotel 
property  to  plaintiffs  in  error,  naming  them, 
and  as  the  children  of  said  William,  for  the 
expressed  consideration  of  one  dollar  and 
natural  love  and  affection,  and  at  the  same 
time  Martin  executed  and  delivered  to  Wil- 
liam and  his  wife  a  life  lease  to  the  same 
property.    The  deed  recited  that  it  was  sub- 


ject to  the  lease.     The  deed  was  drawn  by 
the  defendant  William  Griutcu  at  Martin's  re- 
quest.    Griuton  also   attested   its   execution, 
as  a   witness,  and,  as  a  notary  public,  took 
the  grantors'   acknowledgment.     The   certifi- 
cate was  in  the  usual  form,  certifying  that 
the  grantors  acknowledged  that  they  signed, 
sealed,  and  delivered  the  said  instrument  as 
their  free  and  voluntary  act,  for  the  uses  and 
purposes  therein  expressed.     The  lease  was 
executed   by  Martin,  as  lessor,  and  William 
and   his  wife,  as   lessees;    was  delivered  to 
William  and   his  wife;    purported  to  be  for 
:he  term  of  their  "natural  lives,"  and  upon 
the  consideration  that  the  lessees  should  pay 
all  taxes,  keep  the  premises  in  as  good  con- 
dition as  when  received,  and  keep  the  build- 
ings insured,— three-fourths  of  the  insurance 
for  the  benefit  of  the  lessees,  and  one-fouith 
for  their  children,  the  plaintiffs  in  error.    The 
lease  also  contained  the  following:     "And  't 
is  further  expressly  agreed  by  and  between 
the  parties  hereto  that  in  case  said  premises 
should  at  any  time  be  sold  for  taxes  or  as- 
sessments, and  said  party  of  the  second  part 
should  fail  to  redeem  said  premises  from  such 
sale  at  least  three  months  before  the  time  of 
redemption  from  said  sale  expires,  or  if  said 
parties  of  the  second  part  shall  both  at  any 
time  cease  to  pereonally  occupy  said  premises 
(loss  or  damage  by  tire  or  inevitable  accident 
excepted),  then  and  in  either  of  said  last-nam- 
ed events  the  said  children  of  said  William  P. 
Bissell  above  named  shall  have  the  right,  at 
their   election,    to   declare   said   term   ended, 
anything  herein  to  the  contrary  notwithstand- 
ing, and  the  said  demised  premises,  or  any 
part  thereof,  to  enter,  and  the  said  party  of 
the  second  part,  or  any  other  person  or  per- 
sons occupying  in  or  upon  the  same,  to  ex- 
pel, remove,  or  put  out,  using  such  force  as 
may  be  necessaiy   in   so  doing."     The  deed 
and  lease  wore  dated  January  11,  1875,  but 
the   acknowledgment    was    taken    March   31, 
1875.    Some  time  in  1877,  because  of  some  do- 
mestic trouble,  William's  wife  left  him,  and 
went  to  R  distant  city  to  live  with  her  sister, 
taking  some  of  their  younger  children  with 
her,  and  about  six  months  thereafter  William 
left  the  Hj-emises,  also,  and  removed  to  Chi- 
cago;   he  and  his  wife  having  permanently 
separated,  and  neither  of  them,  nor  their  chil- 
dren, having  since  then  occupied  the  property. 
When   Martin   C.   Bissell  and  wife  executed 
the  deed  to  plaintiffs  in  error,  he  left  it  wiUi 
Grinton,  the  notary,  and  told  him  to  take  it 
and  take  care  of  it,  giving  no  other  directions 
respecting  it.     Grinton  put  it  in  an  envelope, 
and  placed  it  in  the  safe  in  the  ofiice  where  he 
and   Martin   were  engaged  in  business.     He 
was  then  transacting  business  for  Martin  C. 
Bissell    and    himself    under    a    contract    by 
which    he    received   e   certain   share   of    the 
profits.     The  private  papers  of  each,  as  wel." 
as  their  partnership  papers,  were  kept  in  the 
safe.    Grinton  retained  possession  of  the  deed 
until  he  produced  it  in  court  after  the  death 


256 


TITLE. 


of   Martin  C.   Bissell,— a  period   of  about  15 
years.    He  testified  that  it  had  never  been  out 
of  his   hands   since  it   was  placed  there   by 
Bissell,  the  grantor;    and  it  does  not  appear 
that  any  one  ever  aslied  him  for  the  deed  un- 
til   it  was  demanded   by   plaintiffs  in   error, 
shortly  before  the  filing  of  this  bill.     After 
William  P.  Bissell  left  the  property,  in  1877, 
Martin  C.  Bissell  took  charge  of  it,  collected 
the  rents,  and  paid  the  taxes  on  it,  and  kept 
it  in  repair,  the  collections  exceeding  the  dis- 
bursements by  only  a  small  amount.     Plain- 
tiffs in  error  claim  this  was  done  by  agree- 
ment between  him  and  bis  brother  William, 
while  defendants  insist  it  was  done  as  the 
owner,  in  the  exercise  of  his  ownership  of  the 
property.    Two  witnesses  (Stevens  and  Dirk- 
man)  testified  that  during  this  period  Martin 
told  them  at  different  times  that  the  property 
belonged   to  his   brother's  children.     One  of 
these  witnesses,-^n  old  neighbor  of  Mai-tin's 
and  who  had  formerly  owned  the  property,— 
seeing  that  it  "was  running  down,"  inquired 
of  him  about  the  property,  and  proposed  to 
purcha.se  it,   but   Martin   told   him   he  could 
-^ot  sell  it;   that  it  was  not  his;    tliat  he  had 
deeded  it  to  his  brother's  children,  and  had 
given  his  brother  a  life  lease  on  it;    that  his 
brother  had  full  control  of  it  before  he  went 
to  Chicago,  but  had  allowed  it  to  run  to  waste; 
and  that  he  had  paid  the  taxes  for  the  bene- 
fit of  bis  brother.    One  of  these  conversations, 
the  Avitnoss  testified,  occurred  seven  or  eight 
ye-ars  before  the  ti-ial,   which  took  place   in 
1S90,  and  the  other  five  or  six  months  before 
Martin's  death.     In  the  last  conversation  this 
witness,  Stevens,  asked  Martin  why  William 
did  not  take  care  of  the  property;    and  the 
reply   was   that  William   and   his   wife   had 
parted,  and  he  did  not  seem  to  take  much 
charge  of  it.    The  other  witness  testified  that 
some  four  years  before  the  trial  he  was  em- 
ployed by  Martin  in  whitewashing  in  the  ho- 
tel.    He  was  an  elder  or  steward  in  the  Af- 
rican Methodist  Episcopal  Church,  and  was 
interested  in  procuring  a  site  for  a  church, 
and  suggested  to  Mr.  Bissell  the  idea  of  let- 
ting him  have  the  property  so  that  he  "could 
turn  it    over    for    a    churcn,"  but    that  Mr. 
Bissell  replied  that  he  could  not  let  him  have 
it;   that  it  was  his  brother's  children's  proper- 
ty, and  he  would  attend  to  it.    Two  witnesses 
(Crinton  and   Vose)    testified    for   defendants 
that,  after  William  P.  Bissell  left  the  prop- 
erty,  Martin  C.  Bissell  turned   it  over,   first 
to  Grinton,  and  then  to  Vose,  who  took  charge 
of  it,  kept  the  account  of  collections  and  dis- 
bursements,  and  carried  it  on  the  books  in 
Martin's  name,  and  in  the  same  manner  at, 
other   property    of    Martin's.      Vose    testified 
that  Martin  tried  to  sell  it,  and  in  1SS5  talked 
of  trading  it  for  land  in  Virginia.    Vose  claim 
ed  to  have  acquired  an  interest  in  the  prop- 
erly, and  had  a  suit  pending  against  the  execu- 
tors to  enforce  it.     Martin  C.  Bissell,  by  bis 
will,  after  making  various  small  bequests  to 
plaintiffs  in  error  and  others,  gave  the  bulk 
of  his  estate  to  defendants  in  error,  in  mist 


foi*  certain  religious  purposes.  The  testator's 
property  was  not  specifically  described  in  the 
will. 

Hill,  Haven  &  Hill,  for  plaintiffs  in  error. 
Higgins  &  Akin,  for  defendants  in  error. 

CARTER,  J.  (after  stating  the  facts).  The 
controverted  question  in  this  case  is,  did  the- 
title  to  the  hotel  property,  subject  to  the  lease 
to  William  P.  Bissell,  vest  in  plaintiffs  in  er- 
ror by  virtue  of  the  deed  of  Martin  C.  Bis- 
sell and  wife,  or  did  the  deed  fail  to  take 
effect,  because  of  nondelivery? 

The    first    question    to    be    determined    is- 
whether  or  not  the  trial  court  erred  in  admis- 
sion of  the  testimony  of  the  witnesses  Olin 
and    William    P.    Bissell.     Judge   Olin,    who 
drew  the  will  of  Martin  C.  Bissell,  was  per- 
mitted, against  the  objection  of  plaintiffs,  to 
testify  that  the  testator,  in  making  up  the  list 
of  his  property  to  be  included  in  his  will,  in- 
cluded in  the  list  the  hotel  property,  and  told 
him  (the   witness)   that  the  provisions  made 
in  the  will  for  plaintiffs  were  all  he  had  giv- 
en or  intended  to  give  them.     The  court  had 
also,  against  the  objections  of  the  defendants, 
permitted  the  plaintiffs  to  prove  by  William 
P.  Bissell  that  he  went  into  the  possession  of 
the  hotel  more  than  10  years  before  the  deed 
and  lease  were  made,  under  the  promise  of 
his  brother  to  give  it  to  him   for  life,  with 
remainder  to    his  children,   and   that   he   re- 
tained possession  under  such  promise,   with- 
out   paying    any    rent,    until    the   lease    was 
made,  and  that  when  he  left  it,  in  1877,  he 
arranged  with  his  brother  to  lease  and  take 
care  of  the  property.     In  both  of  these  rul- 
ings the  trial   court  erred.     The  defendants 
were   defending   as   the  executors  and  trus- 
tees under  the  will  ot  the  deceased,  and  Wil- 
liam P.  Bissell  was  a  party,  and  interested  in 
the  event  of  the  suit,  adversely  to  the  estate. 
While  it  is  true  that  the  bill  did  not,  in  terms, 
seek  to  establish  the  lease,  yet  it  set  up  the 
lease,  as  well  as  the  deed,  and  the  deed,  on 
Its  face,  purported  to  be  subject  to  the  lease. 
As  between  the  grantees  in  the  deed  and  the 
lessees,  no  forfeiture  had  ever  taken  place  un- 
der the  lease.     If  William's  testimony   was 
true,   instead  of  abandoning   the  lease,   and 
surrendering  the  property   to   the  lessor,   he 
only  made  arrangements  with  his  brother  to 
take  care  of  the  property  for  him;    and  his 
brother's  subsequent  control  of  the  property 
was  not  that  of  owner,  but  simply  as  agent 
for  him,  as  lessee,  and  for  his  children,  as  the 
owners  of  the  fee.     The  cross  bill  sought  to 
have  both  the  lease  and  the  deed  delivered 
up  and  canceled.     Both  issues  were  tried  to- 
gether.    The  court  decreed  in  favor  of  the  de- 
fendants, and  thus  annulled  th-?  lease.     Had 
the   decree  been    in  favor   of  the   complain- 
ants, the  effect  would  have  beer  to  establish 
the  subsisting  validity  of  the  lease,  as  well  as 
of  the  deed,  and  the  estate  would  have  been 
diminished.     He  was  clearly  incompetent,  un- 
der the  statute. 
The  testimony  of  the  witness  Olin  as  to  the 


DELIVERY. 


257 


statements  of  Martin  C.  Bissell  made  in  his 
own  favor  lonjr  after  tlie  deed  took  effect,  if 
it  ever  took  effect,  were  also  improperly  re- 
ceived. The  deed  took  effect  in  1ST5,  when 
it  was  executed,  ackuowledtred,  and  delivered, 
if  it  ever  was  delivered.  If  the  deed  became 
effective  in  lST."i,  it  would  not  be  rendered  in- 
operative b}'  anything  the  grantor  could  say 
1(»  years  later.  If  it  was  a  que.stion  to  be 
determined  from  the  evidence,  as  it  certainly 
was.  whether  the  deed  did  become  effective 
or  not  in  1875,  hearsay  evidence,  or  the  dec- 
larations of  a  party  in  interest,  in  his  own 
favor,  made  long  afterwards,  in  the  absence 
of  the  other  party,  could  not  be  received  to 
aid  in  determining  such  question. 

Counsel  for  defendants,  however,  strenuous- 
ly contend  that  this  testimony  was  proper,  as 
showing  that  it  was  not  the  intention  of  the 
grantor  that  the  deed^shonld  take  effect  as  a 
A^oluntaiT  settlement,  and  cite  the  followhig 
cases  in  support  of  their  contention:  Cline  v. 
Jone.s.  Ill  111.  .5G8;  Bovee  v.  Hinde.  i:J.5  111. 
148.  25  N.  E.  G94;  Barnum  v.  Reed.  1.3G  111. 
398,  20  N.  E.  572;  and  Price  v.  Hudson,  125 
111.  287,  17  N.  E.  817,— which  last  case,  it  is 
insisted  by  counsel,  is  conclusive  of  the  ques- 
tion. We  find  nothing  in  that  case  changing 
the  rule  long  established.  This  court  there 
said:  "Any  disposition  made  of  the  deed  by 
the  grantor.  Ivith  the  intention  thereby  to 
make  a  delivery  of  it,  so  that  it  shall  become 
presently  effective  as  a  conveyance  of  a  title, 
will,  if  accepted  by  the  grantee,  constitute  a 
sufficient  delivery.  3  Washb.  Real  Prop. 
288-293;  Hcnnoson  v.  Aiken,  102  111.  284. 
The  intention  to  deliver,  on  the  one  hand,  and 
of  acceptance,  on  the  other,  may  be  shown  by 
direct  evidence  of  the  intention,  or  may  be 
presumed  from  acts  or  declarations— or  both 
acts  and  declarations — of  the  parties  consti- 
tuting parts  of  the  res  gestae,  which  mani- 
fest such  intention;  and,  in  like  manner,  the 
presumption  of  a  delivery  may  be  rebutted 
and  overcome  by  proof  of  a  contrary  inten- 
tion, or  of  acts  and  declarations  from  which 
the  contrary  presumption  arises.  It  is  not 
competent  to  control  the  effect  of  the  deed 
by  parol  evidence,  when  it  has  once  taken  ef- 
fect by  delivery;  but  it  is  always  competent 
to  show  that  the  deed,  although  in  the  gran- 
tee's hands,  has  never  in  fact  been  delivered, 
unless  the  grantor,  or  those  claiming  through 
him,  are  estopped  in  some  way  from  assert- 
ing the  nondelivery  of  the  deed."  Neither 
the  facts  in  that  case,  nor  the  language  used, 
M-arrant  the  inference  drawn  from  the  case 
by  defendants'  counsel,  nor  do  the  other  cases 
cited  lay  down  gny  different  rule.  As  to 
whether  Martin  C.  Bissell  continued  to  deal 
with  the  property,  and  the  grantees  permit- 
ted him  to  continue  to  deal  with  it,  as  his 
own,  after  the  execution  of  the  deed,  other 
witnesses  were  examined;  but  it  was  clearly 
erroneous  to  admit  and  consider  the  testi- 
mony of  Judge  Olin  as  to  statements  made  to 
him  by  Mr.  Bissell,  -when  drafting  his  will, 
to  the  effect  that  he  still  owned  the  hotel 
GATh;8,R.P.— 17 


propei-ty,  and  had  never  given  it  to  plaintiffs 
in  error.  Guild  v.  Hill,  127  111.  523,  20  X.  E. 
(JG5;  Ma.ssey  v.  Huntington,  118  111.  8(».  7  N. 
E.  2(J9;  Dickie  v.  Carter,  42  111.  377;  Dong 
V.  Long,  19  111.  App.  389;  Id.,  118  111.  G38,  9 
N.  E.  247.  These  statements  had  no  connec- 
tion, either  in  time,  place,  or  circumstance, 
with  the  statements  made  to  the  witnesses 
Stevens  and  Dirkman  to  the  effect  that  the 
property  belonged  to  his  brother's  children, 
and  that  he  was  attending  to  it  for  them  and 
his  brotiier,  and  did  not  tend  to  disprove  such 
statements,  as  supposed  by  counsel.  These 
latter  statements  were  properly  received  as 
admissions  by  the  grantor;  as  statements 
against  his  interest.  Thej*  tended  to  show 
that  he  considered  the  deed  as  having  taken 
effect,  and  that  the  title  had  vested  in  the 
grantees.  They  also  tended  to  explain  his 
acts  in  dealing  with  the  property  after  hav- 
ing conveyed  it. 

But  the  question  still  arises  whether  or 
not,  after  considt'ring  all  proper  evidence  and 
rejecting  all  held  to  be  improper,  the  decree 
of  the  trial  court  can  be  sustained.  "No 
particular  form  or  ceremony  is  necessary  to 
constitute  a  delivery"  of  a  deed.  "It  may  be 
by  acts  without  words,  or  by  words  without 
acts,  or  by  both.  Anything  Avhich  clearly 
manifests  the  intention  of  the  grantor  and 
the  person  to  whom  it  is  delivered  that  the 
deed  shall  presentlj-  become  operative  and 
effectual,  that  the  grantor  loses  all  control 
over  it,  and  that  by  it  the  grantee  is  to  be- 
come possessed  of  the  estate,  constitutes  a 
sufficient  delivery.  The  very  essence  of  the 
delivery  is  the  intention  of  the  party."  Bryan 
V.  Wash,  2  Oilman,  557;  Cline  v.  Jones,  111 
111.  5(13,  and  cases  there  cited.  It  is  well 
settled  that  the  law  makes  stronger  presump- 
tions in  favor  of  the  delivery  of  deeds  in 
cases  of  voluntary  settlements,  especially  in 
favor  of  infants,  than  in  ordinary  cases  of 
bargain  and  sale.  The  acceptance  by  the  in- 
fant will  be  presumed.  And  it  is  even  held 
that  an  instrument  may  be  good  as  a  volun- 
tary settlement,  though  it  be  retained  by  the 
grantor  in  his  possession  until  his  death,  pro- 
viding the  attending  circumstances  do  not 
denote  an  intention  contrary  to  that  appear- 
ing upon  the  face  of  the  deed.  Bi-jan  v. 
Wash  and  Cline  v.  Jones,  supra;  Reed  v. 
Douthit,  G2  Bl.  348;  Walker  v.  Walker.  42 
111.  311;  Otis  V.  Beckwith.  49  111.121;  ISIaster- 
son  V.  Cheek,  23  111.  72;  Souverbye  v.  Arden, 

I  Johns.  Ch.  242;  Bunn  v.  AVintlirop,  Id.  .329; 
Scrugham  v.  Wood.  15  Wend.  545;  Perry, 
Trusts,  §  103;  Urann  v.  Coates,  109  Mass. 
581;  Thompkius  v.  Wheeler.  16  Pet.  114.  And 
it  was  said  in  Walker  v.  Christen,  121  111.  97. 

II  N.E.  893.  that  "the  crucial  test,  in  all  cases, 
is  the  intent  with  which  the  act  or  acts  relied 
on  as  the  equivalent  or  substitute  for  actual 
delivery  were  done."  The  deed  in  question 
must  have  taken  effect  at  once  upon  its  ac- 
knowledgment and  delivery  to  Grinton.  or  not 
at  all;  and  the  real  question  is.  with  what  in. 
tention  was  the  deed  placed  in  the  hands  of 


258 


TITLE. 


Grinton?  Blackmaa  v.  Preston,  123  111.  3S5, 
15  N.  E.  42;  Hayes  v.  Boylan,  141  111.  408,  30 
N.  E.  1041;  Bovee  v.  Hinde,  135  111.  137,  25 
N.  E.  694;  and  cases  supra.  Nothing  was 
said  by  the  grantor  at  the  time  to  indicate 
an  intention  that  the  deed  should  not  take 
effect.  His  instructions  were  to  take  the 
deed,  and  take  care  of  it, — whether  for  him- 
self or  the  grantees,  he  did  not  say.  The 
grantees  were  his  nephews  and  nieces,  seven 
in  number;  the  adults  living  in  different 
places,  and  the  minors,  with  their  father,  his 
brother,  on  the  premises  conveyed.  Under 
the  circumstances,  it  may  have  been  a  ques- 
tion of  some  difficulty,  in  his  mind,  to  de- 
termine to  whom  the  deed  should  be  deliver- 
ed. Instead  of  delivering  it  to  either  of  the 
grantees,  he  could  lawfully  deliver  it  to  a 
third  person  for  their  benefit.  He  did  de- 
liver it  to  a  third  person,  and  whether  for 
their  benefit,  or  only  as  custodian  for  him- 
self, is  a  question  of  fa.ct,  to  be  determined 
from  the  evidence.  Defendants  insist  that 
Grinton  was  the  grantor's  clerk,  and  that  his 
possession  was  the  possession  of  the  grantor. 
It  is  not  clear  from  the  evidence  what  the 
business  relations  were  between  Grinton  and 
Martin  C.  Bissell.  Grinton  testified  that  he 
was  not  employed  by  the  day,  week,  month, 
or  year;  that  he  always  had  a  partnership 
contract  with  Mr.  Bissell  in  the  profits,  and 
that  that  was  the  case  when  these  papers 
were  executed;  that  the  "partnership  papers," 
as  witness  called  them,  as  well  as  his  individ- 
ual papers  and  those  of  Martin  C.  Bissell, 
were  all  kept  in  the  safe.  Whether  he  was 
responsible  for  the  losses  and  expenses  of  the 
business  is  not  disclosed  by  the  evidence. 
From  the  evidence  given,  he  may  have  been 
a  partner  in  business  with  Bissell,  or  merely 
an  employe  receiving  a  share  of  the  profits 
as  a  measure  of  his  pay  for  his  services.  In 
Lockwood  V.  Doane,  107  111.  235,  this  court 
held  that:  "Where  parties  agree  to  share  in 
the  profits  of  business,  the  law  will  infer  a 
partnership  between  them  in  the  business  to 
which  the  agreement  refers,  but  this  presump- 
tion may  be  disproved.  It  is  prima  facie  evi- 
dence, and  will  control  until  rebutted."  Nie- 
hoff  V.  Dudley,  40  111.  406.  Under  the  evi- 
dence and  these  authorities,  it  would  seem 
that  the  relation  between  Grinton  and  Mar- 
tin C.  Bissell,  at  the  time  of  the  transaction 
in  question,  must  be  treated  as  that  of  a  part- 
nership. If  so,  the  transaction  not  pertain- 
ing to  their  partnei-ship  affairs,  possession  of 
the  deed  by  Grinton  was  not,  by  virtue  of 
their  relation,  the  possession  of  the  grantor, 
but  was  the  possession  of  a  third  person. 
Grinton  took  this  deed,  and  placed  it  in  an 
envelope,  and  put  it  in  the  safe,  and  kept  it 
in  his  possession  for  15  years  thereafter,  until 
the  trial  in  the  circuit  court.  Had  Martin  in- 
tended to  retain  control  of  it,  he  could  as 
well  have  placed  it  with  his  own  papers  in 
the  safe.  This  he  did  not  do,  nor  did  he  ever 
assume  or  assert  any  control  over  the  de^d 
afterwards.   Grinton  was  a  notary  public,  and 


as  such  took  the  acknowledgment.  By  this 
acknowledgment  the  grantors  acknowledged 
that  they  signed,  sealed,  and  delivered  the 
instrument  as  their  free  and  voluntary  act, 
for  the  uses  and  purposes  expressed  in  it. 
Whether,  on  an  issue  as  to  the  delivery  of  a 
deed,  otherwise  left  in  doubt  by  the  proofs, 
such  an  acknowledgment  would  be  sufficient 
evidence  of  a  delivery,  it  is  not  necessary  in 
this  case  to  decide;  for,  as  we  conceive,  the 
intention  of  the  grantor  is  otherwise  disclosed 
by  the  evidence  with  sufficient  clearness,  and 
this,  too,  whether  Grinton  was  a  partner  or 
a  mere  employ^  of  Martin  0.  Bissell.  We 
find  nothing  in  the  attending  circumstances 
denoting  an  intention  on  the  part  of  the  gran- 
tor that  the  deed  should  not  take  effect;  but, 
on  the  contrary,  there  is  sufficient  evidence 
that  he  intended  the  deed  to  become  presently 
effective.  He  at  the  Sjame  time  executed  and 
delivered  to  his  brother,  the  father  of  plain- 
tiffs in  eiTor,  and  to  his  brother's  wife,  who 
were  already  in  possession  of  the  property,  a 
life  lease  therefor.  The  deed  was,  on  its 
face,  made  subject  to  the  lease.  By  the  lease 
the  lessees  were  required  to  insure  the  prop- 
erty for  the  benefit,  in  part,  for  themselves, 
and  in  part  for  the  grantees.  The  lease  rec- 
ognized the  grantees  as  the  owners  of  the 
property,  and,  for  breach  of  any  of  the  cove- 
nants in  the  lease,  they  were  authorized  to 
declare  the  term  ended,  and  to  enter  and  ex- 
pel the  lessees.  The  lease  and  deed  were  exe- 
cuted together,  and  were  parts  of  the  same 
transaction,  whereby  Martin  C.  Bissell  dis- 
posed of  all  his  interest  in  the  possession  of 
and  title  to  the  property.  He  reserved  noth- 
ing in  either  the  lease  or  deed.  The  delivery 
of  the  lease  to,  and  the  possession  of  the  prop- 
erty by,  William,  are  not  disputed.  The  right 
to  declai'e  a  forfeiture  and  to  re-enter  was  not 
reserved  to  the  lessor,  but  to  plaintiffs  in  er- 
ror, the  grantees  in  the  deed.  It  would  seem 
from  this  provision  that,  at  the  time  of  the 
tran.saction,  Martin  C.  Bissell  intended  that 
the  title  should  vest  in  appellants;  and  that 
he  understood  it  did  so  vest.  Then,  again, 
it  was  clearly  proved  that  after  William  had 
left  the  property,  and  Martin  had  taken  pos- 
session and  made  repairs,  he  leased  it,  paid 
the  taxes,  and.  to  all  outward  appearances, 
acted  as  the  owner.  He  told  two  witnesses 
that  the  property  belonged  to  his  brother's 
children,  and  that  he  could  not,  for  that  rea- 
son, sell  or  dispose  of  it,  but  would  attend  to 
it,— evidently  meaning  that  he  was  taking 
care  of  it  for  his  brother  and  his  brother's 
children.  It  may  be  that  after  the  lapse  of 
years  he  concluded  that  he  was  entitled  to 
and  would  retain  the  property  as  his  own.  In 
other  words,  he  may  have  changed  his  mind 
in  reference  to  making  a  gift  of  the  property 
to  these  beneficiaries,  honestly  concluding 
that  under  the  circumstances  he  had  a  right 
to  do  so,  but  if  he  did  so  conclude  he  was 
simply  mistaken  as  to  the  legal  effect  of  what 
had  been  done.  The  facts  are  somewhat 
similar  to  those  in  Douglas  v.  West,  140  111. 


DELIVERY. 


259 


461,  31  N.  E.  403.  See,  also,  Winterbottom  v. 
Pattison,  152  111.  334,  38  N.  E.  1050.  We  are 
satisfied  from  the  evidence  that  Martin  C. 
Bisscll  intended  tliat  the  deed  should  take  ef- 
fect when  he  executed  and  acknowlodsed  it 
and  delivered  it  to  Grinton,  and  it  must  be  so 


held.  The  decree  of  the  circuit  court  is  re- 
versed, and  the  cause  remanded,  with  direc- 
tions to  dismiss  the  cross  bill,  and  to  enter  a 
decree  in  accordance  with  the  prayer  of  the 
bill  of  plaintiffs  in  error.  Revei-sed  and  re- 
manded. 


260 


TITLE. 


CROWLEY  et   nx.   t.  C.  N.   NELSON   LUM- 
BER CO.  et  al. 
(69  N.  W.  321.) 

Supreme  Court  of  Minnesota.      Dec.  8,  1896. 

Appeal  from  district  court,  St  Louis  coun- 
ty;  Page  Morris,  Judge. 

Action  by  Robert  Crowley  and  wife  against 
the  C.  N.  Nelson  Liunber  Company  and  oth- 
ers. There  was  a  finding  for  defendants,  and 
from  an  order  denying  a  new  trial  plaintiffs 
appeal.    Affirmed. 

H.  PI.  Hoyt,  for  appellants.  Warner,  Rich- 
ardson &  Lawrence  and  Draper,  Davis  «& 
Hollister,  for  respondents. 

COLLINS,  J.  This  action  was  originally 
brought  against  defendants  lumber  compa- 
ny, the  Chicago  &  Minnesota  Ore  Company, 
and  the  Wyoming  Iron  Company,  corpora- 
tions, for  the  purpose  of  setting  aside  a  deed 
of  conveyance  of  the  lajid  in  controversy, — 
IGO  acres,— executed  and  delivered  by  plain- 
tiffs, husband  and  wife,  to  defendant  lumber 
company,  on  the  ground  that  it  was  pro- 
cured by  fraudulent  representations  and  con- 
cealments. There  were  no  allegations  in  the 
complaint  that  the  ore  company  or  the  iron 
company  were  parties  to  the  fi"aud;  the  only 
averment  In  reference  to  them  being  that 
each  claimed  to  own  or  to  have  some  intei'- 
est  in  the  land.  After  these  defendants  had 
answered,  plaintiffs  procured  an  order  bring- 
ing the  Auburn  Iron  Company,  another  cor- 
poration, into  the  case  as  an  additional  de- 
fendant,— not  as  a  party  to  the  alleged  fraud, 
but  as  claiming  to  be  the  owner  or  having 
an  interest  in  the  land.  The  allegations  in 
the  complaint  as  to  the  procurement  of  the 
deed,  in  which  plaintiffs  were  grantors  and 
the  lumber  company  grantee,  by  fraudulent 
practices,  were  "put  in  issue  by  the  answers 
filed  by  each  of  the  defendants.  The  lumber 
company  further  alleged  that  on  February 
16,  1882,  plaintiff  Robert  Crowley,  then  a 
resident  of  the  state  of  Minnesota,  had  duly 
entered  and  purchased  this  land  from  the 
general  government,  in  accordance  with  the 
provisions  of  the  pre-emption  act,  and  had 
become  the  equitable  owner  of  the  same; 
that  on  February  20,  1882,  said  CroAvley,  for 
a  valuable  consideration,  namely,  ?500,  sold 
the  land  to  defendant  lumber  company,  and 
on  the  same  day  duly  executed,  acknowl- 
edged, and  delivered  to  one  David  Mcintosh, 
for  the  use  and  benefit  of  the  company,  a 
deed  of  conveyance  thereof,  w4iich  was  duly 
recorded  in  the  office  of  the  register  of  deeds 
for  the  proper  county  on  March  1st  of  the 
same  year.  It  was  further  alleged  that  on 
May  20th,  following,  Mcintosh,  for  a  valu- 
able consideration,  duly  executed,  acknowl-- 
edged,  and  delivered  his  deed  of  that  date, 
whereby  he  duly  sold  and  conveyed  the  land 
in  question  to  the  lumber  company,  which 
deed  was  duly  recorded  May  26,  1882.  A 
copy  of  each  of  these  deeds  was  attached  to 
the  answer,   from   which   it   appeared   that 


each  contained  full  covenants  of  warranty. 
A  copy  of  the  deed  alleged  to  have  been  pro- 
cured by  fraud  was  also  made  a  part  of  the 
answer.  It  bore  date  December  5,  1893,  was 
properly  witnessed,  and  was  duly  acknowl- 
edged before  a  notary  public,  having  a  seal 
of  office,  in  the  province  of  Nova  Scotia.  The 
answer  of  defendant  lumber  company,  as 
well  as  separate  answers  filed  by  the  other 
defendants,  set  out  the  execution  and  deliv- 
ery of  a  number  of  mining  leases  and  con- 
tracts relating  to  the  land  in  question,  all 
bearing  upon  the  title  and  interest  in  the 
land  claimed  by  the  defendants  other  than 
the  lumber  company.  This  company  claim- 
ed to  be  the  owner  in  fee  simple,  through 
the  deeds  before  referred  to,  and  averred 
that,  at  the  time  Robert  Crowley  convej'ed 
to  Mcintosh,  he  was.  in  fact,  a  married  man; 
that  his  wife,  plaintiff  Annie  Crowley,  was 
not  at  the  time,  and  never  had  been,  a  resi- 
dent of  the  state  of  Minnesota,  or  of  the 
United  States;  and  that  the  deed  of  Decem- 
ber 5,  1893,  was  executed  and  delivered  by 
the  Crowleys  and  obtained  by  the  lumber 
company  for  the  sole  purpose  of  completing 
its  title  to  the  land,  and  curing  the  defect 
which  existed  by  I'eason  of  her  failure  to 
join  in  the  execution  of  the  deed  in  which 
Mcintosh  was  grantee.  Replies  were  inter- 
posed to  the  answers,  in  which  it  was  de- 
nied that  on  the  day  mentioned  in  the  year 
1882,  or  at  any  time,  Robert  Crowley  had 
sold  the  land  to  the  lumber  company,  or  had 
conveyed  it  to  Mcintosh  or  to  any  other  per- 
son, or  that  Mcintosh  had  at  any  time  con- 
veyed it  to  the  company  or  to  any  one  else. 
The  issues  made  by  these  pleadings,  and  on 
which  the  case  was  tried  by  the  court  with- 
out a  jury,  were  well  defined,  and  may  be 
thus  stated:  First.  Did  plaintiff  Robert  Crow- 
ley sell  the  land  to  the  lumber  company  in 
1882,  and  execute  and  deliver  the  warranty 
deed,  bearing  date  February  20th  of  that  year, 
in  which  Mcintosh  w'as  najned  grantee? 
Second.  Did  Mcintosh  execute  and  deliver 
the  wan-anty  deed,  dated  May  20,  1882,  in 
which  the  lumber  company  was  named  as 
grantee?  And,  third,  w^as  the  deed  executed 
and  delivered  by  plaintiffs,  December  5,  1893, 
in  which  the  company  was  grantee,  procur- 
ed by  means  of  fraudulent  representations 
and  concealments? 

At  the  ti-ial  defendants'  counsel  offered  in 
evidence  a  deed,  containing  fuU  covenants  of 
warranty,  bearing  date  Februaiy  20,  1882,  in 
which  Robert  Crowley  was  sole  grantor  and 
David  Mcintosh  was  grantee,  in  which  was 
described  and  conveyed  in  fee  simple  the  tract 
of  land  involved  in  this  action.  This  instru- 
ment was  executed  and  acknowledged  before  a 
notary  public  of  this  state  in  the  manner  pre- 
scribed by  law,  and,  without  further  proof,  was 
admissible  in  evidence,  under  the  provisions  of 
Gen.  St.  1894,  §  57-59.  This  disposes  of  the 
assignment  of  error  based  upon  the  admission 
of  this  instrument  in  evidence,  over  plaintiffs' 
objection,   without  further  proof  of  its  execu- 


DELIVERY. 


261 


tion.  Counsel  also  introduced  In  evidence  a 
deed,  of  date  May  20,  1S82,  purporting  to  have 
been  executed  and  delivered  by  Mclntosli,  as 
sole  grantor,  to  the  lumber  company,  as  gi'an- 
tee,  describing  and  conveying  the  land  in  ques- 
tion to  Uie  latter  with  full  covenants  of  war- 
ranty. This  deed  was  also  executed  and  ac- 
knowledged within  tliis  state,  in  accordance 
with  the  laws  thereof,  and,  without  further 
proof,  was  also  admissible  in  evidence.  Both 
parties  then  introduced  evidence  in  relation  to 
the  execution  and  delivery  of  these  deeds.  The 
testimony  of  Robert  Crowley,  who  appeared 
as  a  witness,  was  an  attempted  denial  of  the 
execution  or  delivery  of  the  deed  in  which  he 
was  named  as  grantor,  while  Mcintosh,  also  a 
witness,  denied  that  he  linew  of  the  execution 
of  this  deed,  in  which  he  was  named  as  gran- 
tee, or  that  he  ever  received  it,  or  that  he  at 
any  time  conveyed  the  land  therein  described 
to  defendant  lumber  company.  This  included 
a  positive  denial  that  he  executed  or  delivered 
the  deed  of  May  20,  1882,  in  which  he  was 
named  as  grantor,  and  the  company  as  gran- 
tee. The  object  of  this  testimony  was  to  re- 
but and  overcome  the  effect  of  the  admission 
in  evidence  of  what  purported  to  be  the  origi- 
nal conveyances,  and  this  is  authorized  by  the 
provisions  of  section  57.jU,  supra.  Evidence  on 
this  point  was  also  introduced  by  defendants. 
We  need  not  state  wliat  it  was,  but  from  an 
examination  of  it,  including  the  cross-examina- 
tion of  Crowley  and  Mcintosh,  we  are  not 
only  convinced  that  the  ti'ial  court  was  right 
when  finding,  as  facts,  that  Crowley  sold  the 
land  in  February,  1HS2,  to  the  lumber  com- 
pany, for  a  valuable  and  adequate  considera- 
tion, paid  to  him  by  it;  tliat  on  the  20th  day 
of  that  month  he  duly  executed,  acknowledged, 
and  delivered  the  deed,  with  full  covenants  of 
warranty,  in  which  Mcintosh  was  grantee; 
that  this  was  done  at  the  instance  and  request 
of  the  pm-chaser;  and  that  thereafter,  May  20, 
1882,  Mcintosh  duly  executed,  acknowledged, 
and  delivered  the  deed  to  the  pm-chaser  lumber 
company,  in  which  it  was  named  as  grantee,— 
but  that  any  finding  in  opposition  to  these 
would  have  been  against  the  decided  weight  of 
the  evidence.  It  is  argued  by  coimsel  that,  in 
any  event,  the  Crowley  deed  conveyed  nothing, 
because  the  grantor  did  not  know  that  Mcin- 
tosh was  named  as  grantee,  and,  again,  because 
it  was  never  delivered  to  the  latter;  it  being 
shown  that  it  never  came  into  his  actual  pos- 
session. That  Mcintosh  was  named  as  grantee 
in  the  deed,  Crowley  being  in  ignorance  of  tlie 
fact,  was  of  no  consequence.  Crowley  might 
have  insisted  upon  the  name  of  the  real  pur- 
chaser being  inserted  as  gi'autee,  but  the  va- 
lidity of  bis  deed  is  not  affected  by  the  fact 
that  it  was  not.  The  conveyance  was  not  in- 
valid because  the  name  of  a  third  party  was 
inserted  before  its  execution.  It  is  al.so  true 
that  a  deed  must  be  delivered  before  it  takes 
effect.  But  here  was  deliveiy  to  the  actual  pur- 
chaser. If  Mcintosh,  then,  chose  to  convey  the 
land  described  to  the  lumber  company  while 
the  deed  was  in  its  possession,  as  he  did,  he 


acquiesced  in  and  assented  to  all  that  previous- 
ly transpired,  and  the  conveyance  operated  pre- 
cisely as  if  he  kid  knowingly  been  a  party  to 
all  that  had  been  done,  and  had  actually  re- 
ceived the  Crowley  deed  in  his  own  hands. 

Counsel  for  plaintiffs  dispose  of  a  number  of 
their  assignments  of  error,  in  relation  to  the 
admission  in  evidence  of  a  number  of  exhibits, 
quite  summarily  in  their  argument.  We  are  of 
the  opinion  that  the  court  did  not  err  in  its 
rulings,  and  that  it  is  clearly  unnecessary  for 
us  to  discuss  any  of  these  assigmnents.  And. 
obviously,  the  court  ruled  correctly  when  it 
refused  to  permit  the  witness  Mcintosh  to 
state  what  occurred  between  the  witness  Gowau 
and  himself  when  they  met  in  the  western 
country. 

This  brings  us  to  a  consideration  of  the  ap- 
pellants' main  contention  that  the  court  was 
not  warranted  in  finding,  as  a  fact,  that  the 
quitclaim  deed  from  them  to  defendant  lum- 
ber company,  of  date  December  5,  1893,  was 
obtained  without  fraud,  and  was  and  is  a 
valid  deed  of  conveyance  of  the  land  in  ques- 
tion. This  is  equivalent  to  asserting  that  the 
evidence  required  a  finding  that  this  deed  was 
obtained  by  fraudulent  representation  or  con- 
cealments, on  which  there  should  be  based  an 
order  for  judgment  setting  it  asi^e.  We  can- 
not agree  with  coansel.  At  the  outset,  it  is 
well  to  state  that,  when  Crowley  conveyed  this 
land,  in  1883,  and  for  many  years  afterwards, 
it  was  supposed  to  be  principally  valuable  for 
the  pine  timber  then  growing  thereon.  But 
later,  and  a  few  years  prior  to  1893,  there  was 
discovered  upon  it  one  of  the  richest  deposits 
of  iron  ore  ever  found  in  that  section  of  the 
country,  and  it  became  immensely  valuable. 
This  led  to  a  close  scrutiny  of  the  title  by  the 
lumber  company,  and  the  discovery  that  Crow- 
ley was  a  married  man  when  he  conveyed  to 
Mcintosh.  Further  investigation  disclosed  that 
his  wife  was  stiU  living,  both  residing  near 
Sidney,  Province  of  Nova  Scotia.  A  quitclaim 
deed  of  the  land  was  then  prepared,  and  the 
witness  Gowan  sent  by  the  company  to  Sid- 
ney to  secure  its  execution  by  Crowley  and 
his  wife.  As  to  what  occurred  then,  what 
was  said  and  done  by  and  between  the  par- 
ties, the  trial  court  had  the  right  to  accept 
the  version  given  by  Gowan,  and  reject  thai 
of  plaintiffs,  although  this  may  not  be  very 
■  material,  in  view  of  the  fact,  which  is  impor- 
tant, that  Crowley  had  already  sold,  and  by 
warranty  deed  conveyed,  the  land,  and  the 
only  object  in  procuring  the  quitclaim  was  to 
perfect  the  title,  affected,  as  it  was,  by  the 
circumstance  that  Crowley  was  a  married  man 
when  he  deeded,  and  his  wife  had  not  joined 
in  the  deed.  According  to  Gowan's  version, 
he  first  mot  Crowley  on  the  street  in  Sidney, 
and  recognized  him,  they  having  been  ac- 
quainted in  1SS2.  After  a  little  general  con- 
versation Gowan  told  Crowley  what  his  pur- 
pose was  in  visiting  Sidney,  reminded  him  of 
the  fact  that  Mrs.  Crowley  had  not  signed  the 
original  conveyance,  and  informed  him  that  he 
came  to  obtain  a  quitclaim  deed  of  the  prop- 


262 


TITLE. 


erty,    Crowley  expressed  a  willingness  to  have 
such  a  deed  executed,  and  at  his  suggestion  a 
certain    notary  public   was   secured  to   go   to 
Crowley's  house  to  talie  the  acknowledgment. 
The  notary  and  Gowan  went  together,  arriv- 
ing at  the  house  before  Mr.  Crowley  came  in. 
There  was  more  or  less  conversation  between 
the  notary  and  Mrs.  Crowley  before  Mr.  Crow- 
ley came  in,  but  nothing  was  said  about  the 
deed.     A  lunch,   prepared  by   Mrs.    Crowley, 
was  then  eaten,  and  at  the  suggestion  of  the 
notary  the  parties  proceeded  to  the  execution 
of  the  deed,      Gowan  handed  the  quitclaim 
to  be  signed  to  the  notary,  and  also  the  orig- 
inal deed  from  Crowley  to  Mcintosh,  telhng 
him  to  compare  the  description  to  satisfy  the 
Crowleys  that  they  were  the  same.     The  no- 
tary spread  both  deeds  on  the  table,  made  the 
examination,   and  assured  the  Crowleys  that 
the  land  described  was  the  same.     Mr.  and 
Mrs.    Crowley   then   signed   the  deed,   it   was 
witnessed  by  two  witnesses  aside  from  the  no- 
tary, the  acknowledgment  was  taken,  and  the 
deed  handed  to  Gowan.     After  this  Crowley 
expressed   a  wish  that  Gowan   go   and  look 
about  the  little  place  on  which  he  was  living, 
and  also  remarked  that  if  Mr.  Nelson  (of  the 
lumber  company)  had  come  himself  to  Sidney 
t9  obtain  the  deed  he  would  have  paid  $30  or 
$40  for  it,      Gowan   professed  a  willingness 
to    pay,    and    handed    $40    to    Crowley,    who 
immediately   placed    it   in    his    wife's    hands. 
This  was  the  substance  of  what  occurred  when 
the  deed  was  signed.     Gowan  admitted  that 
iie  said  nothing  about  the  discovery  of  iron  on 
the  land,  and  also  that  he  stated  to  the  Crow- 
leys that  the  fire  had  run  through  a  part  of 
the  land,  and  that  it  was  m  a  dangerous  loca- 
tion, the  timber  liable  to  burn,  and  the  com- 
pany wanted  the  deed  because  the  fires  had 
run   through  the  timber.     He  also  admitted 
that  he  was  asked  if  the  land  was  valuable,  to 
which  he  answered  that  all  land  was  valuable 
In  that  locality.     It  stood  admitted  upon  the 
trial  that  httle  or  no  damage  had  been  done 
to  the  timber  by  fire  when  Gowan  procured 
the  deed,  although  there  was  evidence  tending 
to  show  that  he  had  been  informed  that  fire 
had  run  through  and  injured  it  quite  consid- 
erably.    Gowan  also  admitted  that,  when  ask- 
ed about  his  visit  to  Sidney,  he  told  Crowley 
that  he  had  business  in  New  Brunswick  in 
respect  to  an  estate.     From  the  evidence  it  ap- 
peared that  he  went  from  Minnesota  to  Sidney 
direct,  and  returned  immediately,   having  no 
other  business.     His  statements  in   reference 
to  other  business  were  misrepresentations,  at 
least.     So  that  the  acts  of  omission  or  com- 
mission relied  upon  by  appellants  were  that 
Gowan  concealed  from  them  the  fact  that  the 
laud  in  question  had  become  immensely  valu- 
able, stated  that  the  fire  had  run  through  it 
so  as  to  injure  the  timber,  and  for  this  reason 
the  lumber  company  wanted  a  deed,  and  fur- 
ther misrepresented  his  reasons  for  being  in 
that  vicinity  at  that  time. 

Now,  we  are  not  required,  as  before  intimat- 
ed, to  pass  upon  the  facts  in  this  case  as  if  the 


transaction  of  December  5,  1893,  was  the  first 
occurring  between  these  parties.     It   is  alto- 
gether different  from  an  out  and  out  purchase 
of  the  land  by  the  lumber  company  upon  that 
day,  and  the  rules  of  law  which  would  gov- 
ern and  control  such  a  transaction  have  only 
a  limited  application  here,  and  we  need  not 
discuss   them.     Crowley   had,   in   1882,    sold, 
and  by  warranty  deed  with  fuU  covenants  had 
conveyed,  the  land  in  fee  simple.     As  to  him 
the  title  was  perfect  in  the  company.     Mrs. 
Crowley  had  an  inchoate  and  contingent  right 
In  the  land,  which,  in  the  event  of  her  hus- 
band's death  before  her  own,  she  not  having 
assented  in  writing  to  a  disposition  thereof, 
would  ripen  into  a  title  in  fee  in  her  to  an 
undivided   one-third,  subject,  in  its  just  pro- 
portion with  other  real  estate,  to  the  payment 
of  such  debts  of  the  deceased  husband  as  were 
not  paid  from  the  personalty.     This  right  is 
of  the  same  general  nature  as  inchoate  right 
of  dower  at  common  law.     The  right  was  not 
assignable.     It  had  no  real  value.     It  depend- 
ed upon  a  contingency,  and  the  only  thing  the 
wife  could  do  with  it,  when  Gowan  obtained 
the  deed,  was  to  relinquish  it  in  writing  to  the 
i-ompany,  then  owner  of  the  fee.     It  was  an 
incumbrance,   within  the  scope  of  the  cove- 
nants  in    her    husband's    deed.      An    incum- 
brance, within  the  meaning  of  the  covenant 
against  incumbrances,   includes  any   right   or 
interest   in    the  land,    which    may    subsist    in 
third  persons,  to  the  diminution  of  the  value 
of  the  land   not  consistent  with  the  passing 
of  the  fee  by  the  conveyance.     Fritz  v.  Pusey, 
31  Minn.  3G8,  18  N.  W.  M;    Mackey  v.  Har- 
mon, 34  Minn.   168,  24  N.  W.  702.      A  con- 
tingent right  of  dower  is  an  existing  incum- 
brance,   within    the   covenant  against   incum- 
brances.    2  Scrib.  Dower,  §  3,  and  cases  cited. 
That  estates  in  dower  eo  nomine  have  been 
abolished  in  this  state,  and  in  lieu  thereof  there 
has  been  substituted  a  statutory  right  to  a  life 
estate  in  the  homestead  of  the  husband,  and 
title  in  fee  to  an  undivided  one-third  of  all 
other  lands,  has  not  changed  the  rule.     If  any- 
thing, it  has  made  its  expediency  and  neces- 
sity more  apparent.     The  obligation  to  remove 
this  incumbrance  devolved  upon  Mr,  Crowley, 
the  husband,  and  the  right  to  enforce  the  obli- 
gation vested  in  the  lumber  company  upon  the 
execution  and  delivery  to  it  of  the  Mcintosh 
deed.     It  remained   so  vested  when   Gowan 
procured  the  deed  of  December  5,  1898,  and  it 
had  not  been  affected  by  the  discovery  of  a 
rich  mineral  deposit  on  the  land.     And  the  true 
character  of  the  transaction  at  Sidney  seems 
plain,  from  all  of  the  circumstances,  and  from 
what  the  court  had  a  right  to  find  occurred 
there.     Gowan  was  not  there,  nor  did  he  pre- 
tend to  be,  to  purchase  the  land,  for  that  had 
already  been   done.      Nor   did  either   of   the 
Crowleys  so  understand  it.    There  were  no  ne- 
gotiations as  to  price,— no  price  agreed  upon. 
Nothing  was  said  about  payment  of  a  pur- 
cnase  price,  nor  of  the  payment  of  money,  ex- 
cept as  we  have  stated.     The  $40  which  Gow- 
an handed  to  Crowley  was  in  the  nature  of  a 


DELIVERY. 


263 


gratuity.  Its  payment  was  not  exacted  by  the 
Crowleys,  but  was  brought  about  by  a  remark 
which  clearly  indicated  that  the  Crowleys 
knew  that  they  had  no  valuable  interest  in  the 
pi-operty  to  dispose  of,  made  after  the  deed 
had  been  executed  and  delivered  to  Gowan  as 
the  representative  of  the  grantee.  It  is  ob- 
vious, from  what  was  said  and  done,  that  Mr. 
and  Mrs.  Crowley  well  knew  that  Gowan  had 
been  sent  to  Sidney  for  the  purpose  of  obtain- 
ing a  deed  to  be  executed  by  both  of  them, 
because  Mrs.  C.  had  not  signed  the  one  by 
which,  in  1882,  Mr.  Crowley  had  conveyed  the 
land;  the  deed  executed  by  him  alone  being 
then  submitted  for  their  inspection,  and  for 
comparison  by  the  notary,  that  they  might  be 
assured  that  the  iand  described  was  the  same. 
To  sum  it  aU  up,  it  is  evident  that,  as  Crow- 
ley's execution  of  the  quitclaim  deed,  and  the 
procuring  of  his  wife  to  join  in  it,  was  noth- 
ing more  than  he  was  bound  to  do  by  his  cove- 
nants in  the  18S2  deed,  any  misrepresentations 


or  concealments  by  Gowan  as  to  the  condition 
or  value  of  the  land  could  not  have  amounted, 
in  law,  to  a  fraud  upon  Crowley  himself,  and 
that  Gowan  was  under  no  obligation  to  com- 
municate to  Mrs.  Crowley  anything  as  to  the 
condition  or  value  of  the  laud,  and,  further, 
that  in  no  event  did  the  evidence  require  a 
finding  by  the  court  that  Gowan  made  any 
false  representations  to  Mrs.  Crowley.  For 
these  reasons,  the  plaintiffs  were  not  entitled 
to  have  the  deed  set  aside.     Order  affirmed. 

CANTY,  J.  I  concur,  on  the  ground  that 
Gowan's  dealings  were  solely  with  Crowley, 
and  his  representations  were  made  solely  to 
Cro^\-ley;  that  he  left  Crowley  himself  to  deal 
with  Mrs.  Crowley,  who  was  a  stranger  as  to 
the  lumber  company;  and  that  it  owed  her  no 
duty,  and  she  owed  it  none,  but  what  she  did 
was,  from  the  court's  findings,  done  for  her 
husband,  and  to  relieve  him  from  his  cove- 
nants. 


264 


TITLE. 


COLE  et  ux.  V.   KI:MBALL. 

(52  Vt.  G39.) 

Supreme   Court   of   Vermont.      Orange.      ^Lirch 
Term.  1880.     ' 

Covenant.     The  declaration  counted  on 
a    covenant    against   incumbrances   in    a 
deed  from  the  defendant    to   the   plaintiff 
Florette.     The  case  was  referred,  and  the 
referee  reported   in   substance  as  follows: 
On  August  L'G,  1871,  the  defendant  by  war- 
ranty   deed   containing;    the    usual    cove- 
nants, including  a  covenant  against  incum- 
brances conveyed  to  the  plaintiff  Florette 
certain    premises   in    Braintree    tliat   had 
heen  conveyed  to  him  by  Mansel  Heselton 
and  wife;  and  said    Florette,  in    payment 
therefor    conveyed    to    the    defendant     a 
farm  which  liad  before  been    conveyed    to 
her  by  her  father,  Leonard  Fish,  and  with 
her  husband   executed    to   him    a    promis- 
sory note  for  .f4(i2,  which  said  Leonard  aft- 
erwards paid.    On  June  11,  1872,  tlie  plain- 
tiffs by  like  deed  conveyed  the  premises  to 
Ijucia  M.  Fish,tlie  mother  of  said  Florette, 
and  wife  of  said   Leonard.     The   premises 
when  conveyed  by  the  defendant  as  afore- 
said, were  sul)jeL't  to  a  mortgage  executed 
by  Heselton  and   wife  to   Elihu    Hyde   in 
1869.  conditioned    for  the  payment  of  two 
promissory  notes  for  $250   each,  payable 
in  one  and    two  years   respectively,    with 
interest,  one  of  which  only  had  been  paid. 
In  December,  1875,  Hyde  brought   a    peti- 
tion  for  foreclosure  against    tiie    Fishes 
and  others,  but  not  against  theHeseltons 
nor  the  Coles,  and  in   the  following   Jan- 
uary obtained  a  decree  for  $313.29,  the  sum 
due  in   equity,  and  $28.55costs,  to  be  paid 
before  January  1,  1877.  with  interest.     On 
November  1,  1876,  Hyde  sold  and  assigned 
that  decree  to  Ephraim  Tha.vcr  for  .1350. 
Thayer  acting  therein   for  said    Leonard 
and   at   his  request;  and  afterwards,  and 
before  this  action  was  brought,  said  Leon- 
ard, acting  therein  for  his  wife,  paid 
*Thayer  the  amount  of  the  decree  in     *641 
full,  with  interest.    The  conveyance 
from  said  Leonard  to   said    Florette,  and 
fi-oni  lier  to  said  Lucia  were  without  con- 
sideration, and  they   and    the   iiolding   of 
title  by  said  Florette  were  for  the  conven- 
ience, and   at  the  request,  of   the   Fislies, 
said    Leonard   doing   all    the  business  in 
connection    therewith,    and    the   plaintifls 
having  nothing  to  do    witii   it,   except   to 
execute   deeds,  &c.,    as   desired.     This   ac- 
tion was  brought  and  prosecuted    by  said 
Lucia,  in  her  own  behalf  and  for  her   own 
benefit,  and  with  the  privity  and   consent 
of   said    Leonard.     The  releree  found  that 
if  the  plaintiffs  were   entitled   to   recover, 
they  should  recover  .f  341. 84.  with    interest 
from  January   1,  1876.     While  the   action 
was  pending  the  Fishes,  in   consideration 
that   final   judgment  should  ultimately  be 
rendered   therein   for  the  plaintiffs  for  the 
full   amount  of  damages  found  by  the  ref- 
eree, filed   in  court  a  release  of  the  defend- 
ant from  all  causes  of  action  that   they  or 
either  of  them  had,  or  could  have,  in  their 
own    names   to   recover    damages   conse- 
quent on  a  breach  of  any  of  the  covenants 
in  his  deed  to  said  Florette.     The  court  at 
tlie  December  Term.  1879,  Powictis,  J.,  pre- 
siding, rendered   judgment   on   the  report 
for  the    plaintiffs    for   nominal  damages 


and    costs;    to    which    the    plaintiffs   ex- 
cepted. 

P.    Perrin   and  J.    W.  Rowell,    for  the 
plaintiffs.    N.  L.  Boyden, for  the  defendant. 

ROYCE.J.    It  is  conceded  that  the  plain- 
tiffs   are    cntited    to    nominal    damages; 
and   the   only  question    made  is,  whetlier 
upon    the  facts  found  by  the  referee   they 
are  limited  to  the  recovery   of  such    dam- 
ages,   or    are    entitled    to     recover    the 
amount  paid  to  redeem  the  premises  from 
the   Hyde  decree.     This  suit  was   brought 
and    prosecuted    by  Lucia  J\I.  Fish,  for  her 
benefit,  witli    the   privity  and   consent   of 
her  husband,   Leonard   Fish,    who   acted 
for  her  in   paying   the  money  to   redeem 
the     premises     from     the    Hyde    decree. 
Florette  D.  Cole  held  the  title  to  the  prem- 
ises convej'ed    to   her  by  the  defendant  as 
the  trustee  of  Leonard  and  Lucia  M.  Fish, 
and   the  covenants   contained  in  the  deed 
from    the   defendant   to  Florette  D.  are  in 
equity  to  be  treated  as   covenants  for  the 
benefit   of   the  cestuis  que  trust.     All    the 
interest  that  Florette  D.  bad  in  said  cove- 
nants passed  to  Lucia  M.  Fish  by  the  deed 
from  the  plaintiffs   to  her.     The  defendant 
is   liable   on    the  covenants  in  his  deed  to 
protect  the  title  against  the  incumbrances 
that  were  upon  the  premises   described    in 
the  deed  at  the  time  of  its  execution.     The 
covenant  against  incumbrances  runs  with 
the  land,  and  can  be  enforced  for  the  bene- 
fit  of   the   party   holding  the   legal  title. 
The   payment    of   the   amount  due  on  the 
Hyde   decree   Avas   not   a    voluntary  pay- 
ment, but   a   compulsory   one.     Fish   was 
obliged   to  make  it  to  save  his  title  to  the 
premises.     The  claim  to  indemnity  on  ac- 
count of  the  breach  of  the  covenants 
of   title  and    against  in*cumbrances    *644 
was    a    chose    in    action,    and    was 
transferred  to   Lucia    M.  Fish  by  the  deed 
from    the   plaintiffs   to   her;    and   the   as- 
signee  of   a  chose  in   action  has  the  right 
(subject  to  the  right  of  the  assignor  to  re- 
quire indemnity   against  costs)  to  sue  in 
the  name  of  the  assignor.     It  is  a  matter 
of  indifference   to  the  defendant  to  whom 
he   pays,  if   he  is  fully  protected    against 
any    further  liability.     It   is   not  claimed 
that   there  is  any  other   party  but  Leon- 
ard  Fish   and  wife  that  could  make  any 
claim  against  the  defendant  on  account  of 
his  covenants;  and  the  discharge  filed   in 
the  case  is  a  full   protection   against   any 
claim    that  they    might   otherwise  make. 
The  rule  of  law  that  limits  the  recovery 
in    actions    of    covenant    against   incum- 
brances to  the  amount  paid  to  remove  the 
incumbrance  was  adopted  for  the  protec- 
tion of   the  covenantor,  for  until   full  pay- 
ment the  liability  of  thecovenantor  would 
continue.    The  cases  relied  upon  by  the  de- 
fendant differ  from  this  in   the  important 
fact   that  in  none  of  those  cases  did  it  ap- 
pear that  the  suit  was   being   prosecuted 
for  the  benefit   of  an  assignee  who   had 
been  compelled  to  make  payment  to  save 
his  estate,  and   full  indemnity   had   been 
tendered  .  to    the    covenantor.      The     at- 
tempted   defense  is  purely  technical;  and 
it  does  not  ai)pcar  that  any  defense  which 
the   defendant   might  have    made    if    the 
suit  had  been  in  the  name  of  Leonard  Fish 
and    wife   was  not  equally   available    to 


AGAINST  INCUMBRANCES. 


265 


-him  in  the  present  suit.  In  Smitli  v.  Per- 
ry, Admr.  26  Vt.  279,  the  plaintiff  had  not 
paid  the  judgment  recovered  by  liis  gran- 
tee on  account  of  the  breach  of  his  cove- 
nant of  title,  but  the  court  allowed  a  full 
recovery  to  be  had,  protecting  the  defend- 


ant's estate  against  further  liability  by 
the  form  of  the  judgment  rendered.  Here, 
as  we  have  seen,  the  defendant  is  protect- 
ed by  the  discharge  filed. 

Judgment   reversed,   and  judgment  for 
the  largest  sum. 


266 


TITLE. 


PENDILL  et  al.  v.  MARQUETTE  COUNTY 
AGRICULTURAL  SOC. 

(55  N.  W.  384,  95  Mioh.  491.) 

Supreme  Court  of  Michigan.     May  31,  1893. 

Error  to  circuit  court,  Marquette  county; 
John  W.  Stone,  Judge. 

Ejectment  by  Franlc  P.  Pendill,  Joseph 
Neidhardt,  and  James  E.  Sherman  against 
the  Mai-quette  Coimty  Agricultural  Society. 
The  court  directed  a  verdict  for  defendant, 
and  plaintiffs  bring  error.    Reversed. 

Hayden  &  Young,  for  appellants.  Ball  & 
Hanscom,  for  appellee. 

HOOKER,  C.  J.  Plaintiffs  brought  eject- 
ment, claiming  title  in  fee  to  the  premises 
described  in  their  declaration,  and  proved 
a  perfect  title  from  the  federal  government. 
The  defenses  made  are  (1)  that  plaintiffs  are 
estopped  from  asserting  their  title  against 
defendant;  (2)  that  defendant  has  acquired 
title  by  adverse  possession.  The  ancestor  of 
plaintiff  Pendill,  one  John  Pendill,  was  the 
owner  of  a  tax  title  covering  the  land  in 
controversy,  upon  which  an  auditor  general's 
deed  had  issued  to  him.  After  his  death, 
plaintiff  Pendill,  and  the  other  heirs  and 
widow  of  the  decedent,  joined  in  a  partition 
deed  reading  as  follows,  viz.:  "This  inden- 
ture, made,"  etc.,  "between  Frank  Pendill" 
(and  the  other  heirs)  "who  are  the  sons  and 
heirs  at  law  of  James  Pendill,  deceased, 
witnesseth,  that  the  said  parties,  as  such 
heu's  at  law  and  widow,  have  by  amicable 
arrangement  divided  among  themselves  the 
property  of  said  estate:  Now,  therefore,  in 
order  to  cany  into  effect  the  said  agreement 
and  division,  the  said  parties,  in  consideration 
of  the  sum  of  one  dollar  to  each  in  hand 
paid,  the  I'eceipt  whereof  is  hereby  confessed 
and  acknowledged,  have  granted,  sold,  and 
conveyed  all  their  right,  title,  and  interest 
in  and  to  the  following  described  land,"  etc., 
(here  follows  description  of  land  conveyed 
to  the  several  parties,)  "to  have  and  to  hold 
to  each  of  said  grantees  the  lands  above  de- 
scribed, as  conveyed  and  set  off  to  them  in 
severalty,  and  to  their  heirs  and  assigns,  for- 
ever." It  is  defendant's  theoiy  that  imder 
this  partition  deed,  any  title  to  the  premises, 
subsequently  acquired  by  Frank  Pendill  in- 
ured to  the  benefit  of  the  grantee  named  in 
that  deed,  James  Pendill,  and  through  him 
to  defendants.  In  the  case  of  Jackson  v.  Wal- 
dron,  13  Wend.  178,  it  is  said  that  "the  prin- 
ciple of  an  estoppel,  as  applicable  to  deeds, 
is  to  'prevent  circuity  of  action,  and  to  com- 
pel parties  to  perform  their  contracts.'  Thus, 
a  party  asserting  in  a  deed  the  existence  of 
a  particular  fact,  and  thereby  inducing  an- 
other to  contract  with  him,  cannot  by  a  de- 
nial of  that  fact  compel  the  other  party  to 
seek  redress  against  his  bad  faith  by  suit," 
etc.;  and  this  doctrine  is  well  supported. 
So,  where  the  deed  imports  to  convey  a  fee, 
though  it  lacks  a  covenant  of  warranty,  the 


doctrine  of  estoppel  permits  the  grantee  tO' 
have  the  benefit  of  such  titles  as  the  grantor 
may  subsequently  acquire.  In  the  case  of 
Van  Rensselaer  v.  Kearney,  11  How.  326,  it 
is  said  by  Mr.  Justice  Nelson  that  "the  prin- 
ciple deducible  from  these  authorities  seems 
to  be  that,  whatever  may  be  the  form  or 
nature  of  the  conveyance  used  to  pass  real 
property,  if  the  grantor  sets  forth  on  the 
face  of  the  instrument,  by  way  of  recital  or 
averment,  that  he  is  seised  or  possessed  of  a 
particular  estate  in  the  premises,  and  which 
estate  the  deed  purports  to  convey,  or,  what 
is  the  same  thing,  if  tlie  seisin  or  possession 
of  a  particular  estate  is  affirmed  in  the  deed, 
either  in  express  terms  or  by  necessary  im- 
plication, the  grantor,  and  all  persons  in 
privity  with  him,  shall  be  estopped  from 
ever  afterwards  denying  that  he  was  so 
seised  and  possessed  at  the  time  he  made 
the  conveyance."  We  may  then  inquire 
whether  the  partition  deed  relied  on  carries 
on  its  face,  by  way  of  recital  or  averment, 
the  statement  that  the  grantors  or  their  an- 
cestor were  seised  of  a  title  in  fee  in  the  prem- 
ises, either  in  express  terms  or  by  necessary 
implication.  After  naming  the  parties,  the 
deed  recites  the  fact  that  they  "have  by  am- 
icable arrangement  divided  among  them- 
selves the  property  of  the  estate."  The  con- 
sideration is  "one  dollar  to  each,"  for  which 
they  "have  granted,  sold,  and  conveyed  all 
their  right,  title,  and  interest"  in  the  land 
mentioned.  If  there  is  an  assertion  of  any 
particular  interest  or  title,  either  express  or 
by  necessary  implication,  it  is  hmited  to 
that  belonging  to  the  estate,  of  which  it  may 
be  presumed  that  all  were  equally  cogni- 
zant. We  see  no  opportunity  for  the  appli- 
cation of  the  doctrine  of  estoppel  to  this  case. 
The  question  of  adverse  possession  remains. 
Defendant  purchased  the  premises  from 
James  Pendill,  to  whom  this  tax  title  was? 
conveyed  by  the  partition  deed.  Defendant 
claimed  that  it  and  its  grantors  had  been  in 
possession,  claiming  under  this  tax  deed, 
for  upwards  of  10  years  before  this  action 
was  brought.  The  court  instrxicted  the  jury 
that  the  evidence  established  such  claim,  and 
directed  a  verdict  for  defendant.  The  ques- 
tion, tlien,  is,  was  the  court  justified  in  hold- 
ing, as  a  matter  of  law,  that  the  facts  shown 
constituted  adverse  possession,  instead  of 
submitting  the  fact  to  the  jury?  In  the  case 
of  Yelverton  v.  Steele,  40  Mich.  541,  Mr. 
Justice  Graves,  in  stating  the  law  upon  the 
subject  of  adverse  possession  said:  "The  doc- 
trine which  sanctions  the  divestiture  of  the 
true  owner  by  hostile  occupancy  is  to  be 
taken  strictly,  and  the  case  is  not  to  be  made 
out  by  inference,  but  by  clear  and  cogent 
proof,"— supporting  his  opinion  by  numerous- 
authorities.  He  quotes  with  -  approval  the 
language  of  Mr.  Justice  Duncan  where  he- 
says  that  "it  must  be  an  actual,  continued, 
visible,  notorious,  distinct,  and  hostile  pos- 
session." While  it  would  have  been  the 
duty  of  the  court  to  have  directed  a  verdict 
for  the  plaintiffs  in  case  of  the  absence  of 


AGAIXST  INCUMBRANCES. 


2(37 


clear  and  cogent  proof  upon  any  one  of 
lliese  six  requisites,  he  could  not  properly 
liave  directed  a  verdict  for  the  defendant, 
unless  each  and  everj-  one  of  them  were  es- 
tablished by  such  proof,  uncontroverted;  for, 
the  moment  that  any  evidence  fairly  tending 
to  disprove  one  of  them  was  given,  a  ques- 
tion of  fact  for  the  juiy  arose,  whether  it 
was  shown  by  plaiuLiffs,  or  appeared  from 
the  examination  of  defendant's  witnesses. 
The  partition  deed  was  executed  August  3, 
3SS5,  at  which  time  James  Pondill  succeeded 
to  the  tax  title  of  his  ancestor.  He  was 
called  upon  rebuttal,  and  testified  as  follows: 
"Question.  You  made  your  contract  with 
Maynai-d  in  the  summer  of  ISSG,— July  or 
June,  1886.  AVliat  do  you  say  witli  respect 
to  your  drawing  rent,  or  there  being  anybody 
in  occupation  of  the  property,  up  to  that 
time?  Answer.  I  am  certain  it  ceased  be- 
fore that  time."  On  cross-examinatiou  the 
same  witness  was  questioned,  and  answered 
as  follows:  "Q.  The  slaughterhouse  he 
[meaning  the  ancestor]  had  there  was  occu- 
pied by  him,  was  it  not,  up  to  the  time  of 
his  death?  A.  Not  all  the  time,  sir.  Q.  I 
mean  he  had  something  there,  he  kept  some- 
thing there,  and  looked  after  it.  A.  I  don't 
think — not  at  the  time— h*  had  anything  there 
before  it  burned.  Q.  I  mean  up  as  long  as 
he  lived.  Didn't  lie  have  some  tools?  A. 
I  don't  believe  anything  was  ever  kept  there 
for  some  time.    We  had  no  use  for  it    Q. 


lie  still  retained  charge  of  It,  and  lookeu 
after  the  property,  I  suppose,  did  he  not? 
A.  In  what  way?  Q.  Well,  looked  after  it 
to  see  there  were  no  trespasses  committed 
on  it.  A.  I  don't  believe  he  had  been  there 
for  some  years.  Q.  Don't  you  think  he  was 
out  there  the  season  before  he  died?  A.  No, 
sir;  I  don't  think  ho  had  any  occasion  to 
go  there.  Q.  He  had  tenants  living  in  the 
hoiLseV  A.  I  don't  think  he  did  at  that  time. 
Q.  Do  you  know  about  it?  A.  Well,  I  can't 
state  positively  just  when  they  came  and 
went,  but  I  know  the  house  was  vacant  a 
large  part  of  the  time."  Again,  the  witness 
Prentice,  who  went  in  1881  to  look  at  the  old 
house  with  a  view  to  using  it  as  a  pesthouse, 
says  that  he  foimd  the  house  unoccupied,  win- 
dows out,  and  the  doors  down,  and  the  floor 
about  used  up.  All  this  was  evidence  bearing 
on  the  question  of  whether  there  was  actual 
or  >ible  or  notorious  or  continued  occu- 
pancj-;  and  though  the  court  may  perhaps 
properly  have  felt  that  the  great  preponder- 
ance^' of  evidence  showed  the  possession 
claimed,  in  which  opinion  the  jurors  might 
have  concm-red,  it  was  their  province  to  deal 
with  the  question,  which  could  not  properly 
be  taken  from  them.  We  see  no  alternative 
but  to  reverse  the  judgment,  with  costs. 
Ordered  accordingly. 

GRANT,   J.,   did  not   sit.    The  other  ju^ 
tices  concurred. 


268 


TITLE. 


WITHY  V.  MUMFORD. 

(5  Cow.  137.) 

Supreme  Court  of  New  York.     1825. 

On  demurrer  to  the  declaration.  This  was 
of  a  plea  of  breach  of  covenant,  and  stated 
that  Feb.  21,  1814,  the  defendant,  by  indenture 
between  him  and  one  Harnden,  did  grant,  &c., 
to  Harnden  in  fee,  certain  lands  (describing 
them);  and  that  he  did  covenant,  &c.,  with 
Harnden,  his  heirs  and  assigns,  &c.,  to  warrant 
and  defend  the  premises,  &c.,  against  all  per- 
sons claiming,  &c.;  that  on  the  day  of  the  ex- 
ecution of  this  indenture,  Harnden  entered  in- 
to possession  of  the  premises,  &c.;  and  after- 
wards, March  12,  1817,  by  indenture  between 
him  and  the  plaintiff,  conveyed  the  same  prem- 
ises to  the  plaintiff,  in  fee,  who  entered,  &c.; 
but  was  afterwards  evicted  by  certain  persons 
having  lawful  title,  before  the  defendant  con- 
veyed to  Harnden.    And  so,  &c. 

I'iie  defendant  craved  oyer  of  the  indenture 
between  Harnden  and  the  plaintiff,  which  was 
granted;  and  the  indenture  set  forth,  contain- 
ed a  covenant  of  warranty  from  Harnden  to 
the  plaintiff,  Ms  heirs  and  assigns.  For  this 
cause,  demurrer  and  joinder. 

J.  A.  Collier,  in  support  of  demurrer.  S. 
Sherwood,  contra. 


SAVAGE,  C.  J.  The  point  on  which  the  de- 
fendant relies,  is,  that  the  deed  from  Harnden 
to  the  plaintiff  containing  a  covenant  of  war- 
ranty, he  cannot  sue  as  assignee. 

In  the  days  of  Lord  Coke,  the  law  was  under- 
stood differently.  He  says:  "If  a  man  en- 
feoffeth  A.  to  have  and  to  hold  to  him,  his 
heirs  and  assigns;  A.  enfeoff eth  B.  and  his 
heirs;  B.  dieth,  the  heir  of  B.  shall  vouch  as 
assignee  to  A.:  so  as  heirs  of  assignees,  and 
assignees  of  assigns,  and  assignees  of  heirs,  are 
within  this  word  (assigns);  which  seemed  to 
be  a  question  in  Bracton's  time.  And  the  as- 
signee shall  not  only  vouch,  but  also  have  a 
warrantia  cartse."  Co.  Lift.  384b,  and  the  au- 
thorities there  cited. 

The  same  doctrine  is  found  in  Spencer's 
Case,  5  Coke,  17,  and  in  all  the  books.  That 
the  covenant  to  warrant  and  defend,  is  a  cove- 
nant which  runs  with  the  land,  and  that  the 
assignee  is  entitled  to  the  benefit  of  all  such 
covenants,  is  a  proposition  which  needs  not  the 
citation  of  an  authority  for  its  support.  The 
doctrine  will  be  found,  however,  in  4  Cruise, 
Dig.  452-457. 

The  case  of  Middlemore  v.  Goodale,  Cro.  Car. 
.503,  was  an  action  by  the  assignee  on  the 
covenant  for  further  assurance.  The  defend- 
ant pleaded  a  release  from  J.  S.  with  whom  he 
made  the  covenant,  which  release  was  exe- 
cuted after  the  commencement  of  the  suit.  All 
the  court  agreed,  that  the  covenant  ran  with 
the  land,  and  that  the  assignee  should  have  the 
beneGt  of  it. 

From  these  authorities  it  is  clear  that  the 
covenant  of  warranty  runs  with  the  land,  and 


is  intended  for  the  benefit  of  the  grantee,  his 
heirs  or  his  assigns,  according  to  the  language 
of  the  covenant  itself. 

But  it  is  contended  by  the  defendant,  that 
though  the  assignee  of  the  grantee  may  gen- 
erally resort  to  the  original  grantor,  for  a 
breach  of  the  covenant  happening  after  the 
assignment;  yet  he  has  not  such  remedy,  when 
he  has  a  warranty  from  his  immediate  grantor. 
There  is  surely  nothing  in  the  covenant  of  war- 
ranty itself,  to  justify  such  a  doctrine;  nor  is 
there  any  reason  growing  out  of  the  acts  of 
the  parties,  why  the  assignee,  by  taking  a  war- 
ranty from  his  immediate  gruntor,  should  lose 
his  claim  upon  the  first  grantor.  It  cannot 
operate  by  way  of  release.  If  this  were  the 
consequence,  a  quitclaim  deed  would  often  be 
a  better  conveyance  than  one  with  full  cove- 
nants. 

It  is  contended,  however,  that  this  doctrine 
is  supported  by  authority,  and  the  cases  of 
Greeuby  v.  Wilcocks,  2  Johns.  1,  and  Kane  v. 
Sanger,  14  Johns.  89,  are  cited. 

The  case  of  Greenby  v.  Wilcocks  decides,  that 
an  action  upon  the  covenant  of  seisin,  cannot 
be  brought  by 'the  assignee,  because  the  gran- 
tor, having  no  title  when  the  covenant  is  made, 
it  is  broken  immediately,  before  the  assign- 
ment, and  when  broken,  becomes  a  mere  chose 
in  action,  and,  as  such,  is  incapable  of  assign- 
ment. This  being  the  only  reason  given,  it 
would  seem  to  follow,  that  whoever  was  owner 
of  the  land,  which  was  the  substratum  of  the 
covenant,  would  be  entitled  to  prosecute  for 
the  breach  of  a  covenant  running  with  that 
land,  if  broken  while  the  land  was  in  his  hands. 
This  case,  therefore,  proves  nothing  against  the 
plaintiff's  right  of  recovery  in  the  principal 
case,  but  rather  supports  it.  The  plaintiff,  an 
assignee,  has  been  evicted.  The  covenant  re- 
mained unbroken,  till  after  the  assignment  to 
him.  He  has  been  damnified,  not  the  original 
grantee,  Harnden;  and  if  the  defendant's  doc- 
trine be  correct,  Harnden  may  recover  dam- 
ages which  he  never  sustained,  and  may  pocket 
the  money;  while  the  plaintiff,  upon  whom  the 
whole  loss  has  fallen,  can  recover  nothing,  if 
Harnden  be  unable  to  respond.  Such  a  doc- 
trine I  should  hold  utterly  untenable,  were  it 
not  for  what  was  said  by  the  late  Chief  Justice 
Spencer,  in  the  case  of  Kane  v.  Sanger. 

That  was  an  action  of  covenant,  brought  to 
recover  damages  for  an  eviction  of  the  plain- 
tiff's grantees.  The  counsel  for  the  plaintiff 
seems  not  to  have  argued  the  main  point;  but 
placed  his  right  to  recover  upon  a  variance  be- 
tween the  defendant's  notice  and  proof.  Spen- 
cer, J.,  in  delivering  the  opinion  of  the  court, 
says,  "It  is  a  general  rule,  that  where  cove- 
nants run  with  the  land,  if  the  land  is  assigned 
or  conveyed,  before  the  covenants  are  broken, 
and  afterwards  they  are  broken,  the  assignee 
or  grantee  can  alone  bring  the  action  of  cove- 
nant to  recover  damages;  but  if  the  grantor  or 
assignor  is  bound  to  indemnify  tlie  assignee  or 
grantee,  against  such  breach  of  covenant,  then 
the  assignor  or  grantor  must  bring  the  action." 
And  he  cites  2  Mass.  460. 


WARRANTY. 


209 


In  a  subsequent  part  of  the  opinion,  ho  ad- 
mits, that  to  avoid  circuity  of  action,  a  release 
from  tlie  plaintiff's  grantees  to  the  defendant, 
\vould  have  been  a  bar  to  the  suit,  but  for  the 
circumstance,  that  they  had  given  the  plaintiff 
mortgages;  and  the  mortgages  reinvested  the 
title  in  the  plaintiff;  so  that,  in  effect,  there 
were  no  assignees.  The  plaintiff  having  con- 
veyed away  the  property,  and  received  it  back, 
stood  as  if  no  conveyance  had  ever  been  execut- 
ed by  him.  These  mortgages  had  been  assigned 
to  Morris;  and  it  was  a  fact  in  the  case,  that 
the  suit  was  brought  by  the  direction,  and  for 
the  benefit  of  Morris;  so  that  the  recovery, 
after  all,  was  virtually  in  favor  of  the  assignee. 

The  remark,  therefore,  that  the  assignee,  with 
warranty,  could  not  maintain  an  action,  as 
assignee,  for  a  breach  after  the  assignment, 
was  not  called  for.  It  professes  to  be  supported 
by  no  authority,  but  the  case  of  Biokford  v. 
Paige,  2  Mass.  4G0,  per  Parsons,  C.  J.  ^^'ith 
the  greatest  deference,  I  do  not  understand 
such  doctrine  to  be  there  asserted.  The  case 
itself  was  an  action  by  the  covenantee,  against 
the  covenantor;  and  broaches  were  assigned 
upon  the  covenants  of  warranty,  of  seisin,  and 
against  encumbrances.  The  defendant  pleaded, 
that  the  plaintiff,  before  suit  brought,  had  con- 
veyed to  one  Roberts,  without  any  covenants 
making  him  liable  for  any  defect  of  title.  The 
plaintiff,  in  his  replication,  set  out  his  deed  to 
Ivoborts,  being  a  release  with  warranty  against 
himself,  his  heirs  and  assigns.  To  this  replica- 
tion the  defendant  demurred.  No  encumbrances 
were  shown,  nor  any  eviction.  The  court, 
therefore,  decided,  that  the  plaintiff  ought  to 
recover  on  the  covenant  of  seisin,  on  the  ground 
That  this  covenant  having  been  broken  before 
the  plaintiff's  release  to  Roberts,  it  was  a  chose 
in  action,  unassignable  in  its  nature;  and,  there- 
fore, did  not  pass  to  Roberts  by  the  release. 
Parsons,  C.  J.,  in  the  course  of  delivering  the 
opinion  of  the  court,  advances  the  doctrine  re- 
lied on  by  the  late  chief  justice  of  this  court, 
in  these  words:  "It  is  a  general  i-ule,  that 
when  a  feoffment  or  demise  is  made  of  land 
with  covenants  that  run  with  the  land,  if  the 
feoffee  or  lessee  assign  the  land,  before  the 
covenants  are  broken,  and  afterwards  they  are 
broken,  the  assignee,  only,  can  bring  an  action 
of  covenant,  to  recover  damages,  unless  the 
nature  of  the  assignment  be  such,  that  the  as- 
signor is  holden  to  indemnify  the  assignee 
against  a  breach  of  the  covenants  by  the  feoffor 
or  lessor.  This  rule  is  founded  on  the  prin- 
ciple, that  no  man  can  maintain  an  action  to 
recover  damages,  who  can  have  suffered  no 
damages." 

Here,  it  is  distinctly  asserted,  that  the  gran- 
tee, who  is  also  the  assignor,  can  maintain  no 
action  for  damages,  if  he  is  himself  not  liable 
to  his  assignee.  Why?  Because  he  can  have 
suffered   no   damages.     The   assignee,   who  has 


suffered  damages,  and  he  only,  ean  bring  the 
action  in  such  a  case.  But,  if  the  assignor  has 
covenanted  to  warrant  the  assignee,  and  has 
actually  sustained  damage,  in  consequence  of 
his  covenant,  by  a  recovery  against  him,  then 
he  has  his  remedy  over  against  his  grantor. 
Having  been  damnified,  he  is  thereby  reinvested 
with  his  original  rights.  Then  he  will  have 
suffered  the  damages,  which  he  seeks  to  re- 
cover on  the  covenant  to  himself;  and,  in 
such  a  case,  the  assignee  is  not  the  only  person, 
who,  under  any  circumstances,  may  prosecute 
the  original  grantor.  That  this  is  what  Chief 
Justice  Parsons  meant,  is  evident  from  what  he 
lays  down  as  the  foundation  of  the  rule.  The 
reason  he  gives  is,  that  no  man  can  recover 
damages,  who  has  sustained  none.  Mere  lia- 
bility is  not  enough.  Actual  damage  must 
have  been  suffered  by  the  assignor,  to  authorize 
the  action  by  him.  To  place  any  other  con- 
struction upon  the  language  of  Chief  Justice 
Parsons,  is  to  render  him  inconsistent  with  him- 
self; besides  making  him  stem  the  whole  cur- 
rent of  authority. 

This  subject  has  been  very  fully  discussed  in 
Booth  V.  Starr,  1  Conn.  244.  The  facts  were, 
that  J.  Booth  conveyed  with  warranty,  to  S. 
Booth,  a  lot  of  land  in  Hudson.  Booth  con- 
veyed to  a  third  person,  he  to  a  fourth,  and  he 
to  the  fifth  gi-antee — all  with  covenants  of  war- 
ranty and  seisin.  The  last  grantee  was  evict- 
ed; but  the  plaintiff,  S.  Booth,  was  not  damni- 
fied. Swift,  J.,  states  the  question  to  be. 
whether,  in  the  case  of  a  covenant  of  warranty, 
annexed  to  lands,  an  intermediate  covenantee 
can  maintain  an  action  against  a  prior  cove- 
nantor, without  having  been  sued  by.  or  satis- 
fied the  damages  to  the  last  covenantee,  who 
has  been  evicted. 

The  question  was  discussed  with  great  learn- 
ing and  ability,  and  at  considerable  length;  and 
the  court  expressly  decided,  that  the  last  cove- 
nantee, who  has  been  evicted,  may  prosecute 
any,  or  all  of  the  preceding  covenantors,  till  he 
obtain  satisfaction;  but  that  no  intermediate 
covenantee  can  sue  his  covenantor,  till  he  him- 
self has  been  compelled  to  pay  damages  upon 
his  own  covenant. 

In  this  case,  the  plaintiff  might  have  sued 
Haruden,  his  own  immediate  grantor.  He  did 
not  choose  to  do  so.  Harnden  may  have  been 
dead,  or  insolvent,  or  the  plaintiff  may  have 
had  other  reasons  for  preferring  a  direct  resort 
to  the  defendant.  It  is  suflacient  for  his  pur- 
pose, that  he  had  a  legal  right  to  do  this. 

In  the  case  of  Garlock  v.  Gloss  (decided  by 
this  court,  in  May  term,  1S34)  5  Cow.  143. 
note,  a  similar  action  was  sustained  by  an  in- 
termediate covenantee,  who  had  been  damnified, 
though  the  property  had  passed  through  four 
different  grantors,  with  warranty,  down  to  him- 
self. The  plaintiff  is  entitled  to  judgment. 
Judgment  for  the  plaintiff. 


270 


TITLE. 


WELBON  V.  WELBON  et  al. 
(67  N.  W.  338.) 

Supreme  Court  of  Michigan.     May  19,  1896. 

Appeal  from  circuit  court,  Washtenaw 
county,  in  chancery;  Edward  D.  Kirne, 
Judge. 

Bill  by  Isaac  Welbon  against  Mary  Jane 
Welbon  and  others  to  foreclose  a  mortgage. 
There  was  a  decree  for  complainant  and  de- 
fendants appeal.    Reversed. 

The  object  of  this  suit  is  to  foreclose  a 
mortgage  executed  by  the  complainant  to 
one  Joseph  M.  Thompson.  The  material 
facts  are  these:  Complainant  was  the  hus- 
band of  defendant  Mary  Jane,  and  the  fa- 
ther of  the  other  defendants.  Mr.  and  Mrs. 
Welbon  became  involved  in  trouble,  result- 
ing in  her  filing  a  bill  of  divorce  against 
him.  This  trouble  was  then  finally  arran- 
ged, and  resulted  in  complainant's  executing 
a  deed  of  this  land  to  his  children,  who  were 
then  minors.  The  land  was  a  farm,  and 
the  family  moved  and  lived  upon  it  for  a 
while.  Previous  to  the  execution  of  this 
deed,  complainant  had  executed  this  mort- 
gage for  the  sum  of  $200.  His  wife  did  not 
join  in  the  mortgage.  It  is  claimed  that  the 
family  did  not  know  of  the  mortgage  until 
some  years  afterwards.  Mr.  and  Mrs.  Wel- 
bon again  became  estranged.  She  left  him, 
and,  with  the  children,  went  to  Detroit. 
She  again  filed  a  bill  of  divorce  against  him, 
and  obtained  a  decree.  In  1885  complain- 
ant paid  Mr.  Thompson  the  amount  of  the 
mortgage  debt,  and  the  mortgage  was  re- 
turned to  him.  Shortly  after,  Mr.  Welbon 
presented  a  paper  for  Mr.  Thompson's  sig- 
nature, saying  that  he  wanted  something  to 
show  that  the  mortgage  was  paid.  Mr. 
Thompson  executed  the  paper,  which  was  an 
assignment  instead  of  a  discharge.  Decree 
for  the  full  amount  and  interest  was  entered. 

John  H.  Powell,  for  appellants.  John  P. 
Kirk,  for  appellee. 


GRANT,  J.  (after  stating  the  facts).  The 
decree,  we  think,  cannot  be  sustained  for 
several  reasons: 

1.  The  defendants  were  not  personally 
liable  for  the  debt  secured  by  the  mortgage. 
It  was  therefore  erroneous  to  enter  a  de- 
cree against  them  for  any  deficiency.  Com- 
plainant alone  was  personally  liable  for  the 
debt,  and  had  paid  it. 

2.  In  the  deed  to  his  children  complain- 
ant reserved  a  life  estate  in  himself.  It  was 
his  legal  obligation  to  pay  the  interest  upon 
the  mortgage  during  the  existence  of  the 
life  estate.  The  decree  was  erroneous  in  in- 
cluding interest. 

3.  The  deed  contains  the  following  cov- 
enant: "The  said  party  of  the  first  part, 
for  himself,  his  heirs,  executors,  and  ad- 
ministrators, does  covenant,  grant,  bargain, 
and  agree  to  and  with  the  said  parties  of  the 
second  part,  their  heirs  and  assigns,  that 
at  the  time  of  the  ensealing  and  delivering  of 
these  presents  he  is  well  seised  of  the  above- 
granted  premises  in  fee  simple;  that  they 
are  free  from  aU  incumbrances  whatsoever, 
except  a  certain  mortgage  given  by  him  to 
Joseph  M.  Thompson,  dated  October  18, 
1883;  and  that  he  vrill,  and  that  his  heirs, 
executors,  and  administrators  shall,  war- 
rant and  defend  the  same  against  all  law- 
ful claims  whatsoever."  The  covenant  of 
warranty  contains  no  exception,  and  the 
previous  mention  of  the  existence  of  this 
incumbrance  does  not  take  it  out  of  his 
covenant  of  warranty  to  defend  the  title 
against  all  lawful  claims  whatsoever.  In 
other  words,  there  is  no  limitation  placed 
upon  this  covenant.  Manufacturing  Co.  v. 
Zellmer  (Minn.)  51  N.  W.  379.  The  decree 
must  be  reversed,  with  costs  of  both  courts, 
and  the  bill  dismissed. 

LONG,  C.  J.,  did  not  sit  The  other  jus- 
tices concurred. 


TITLE  BY  ESTOPPEL. 


271 


BLAKESLEE  v.  SIXCEPAUGH. 

(24  N.  Y.  Supp.  947,  71  Hun,  412.) 

Supreme  Court,  General  Term,  Fourth  Depart- 
ment.    Sept.,  1893. 

Appeal  from  circuit  court,  Tompkins  county. 

Ejectment  by  H.  D.  Blakeslee  against  Isaiah 
Sincepaugh.  From  a  judgment  rendered  on  a 
verdict  for  defendant,  and  from  au  order  deny- 
ing a  motion  for  a  new  trial  upon  a  case  and 
exceptions,  plaintiff  appeals.    Affirmed. 

The  action  is  in  ejectment  for  19.41  acres  of 
land.  In  the  complaint  it  is  alleged  that  on  De- 
cember 3,  1880,  Havilla  D.  Blakeslee,  then  be- 
ing the  owner  of  these  and  other  lands,  conveyed 
the  same  to  the  plaintiff;  that  plaintiff  thereup- 
on entered  into  possession,  and  so  remained  un- 
til on  or  about  December  1,  1882,  when  the  de- 
fendant entered  into  possession,  and  ousted  the 
plaintiff;  and  that  defendant  has  ever  since  been 
in  possession.  In  the  answer  it  is,  among  oth- 
er things,  alleged  that  the  defendant,  on  the 
1st  December,  1882,  purchased  the  premises  of 
Havilla  D.  Blakeslee;  that  shortly  before  this 
the  plaintiff,  knowing  that  defendant  was  about 
to  purchase  from  Havilla  D.  Blakeslee,  falsely 
and  fraudulently  represented  to  the  defendant 
that  he  (the  plaintiff)  had  no  title  or  interest  in 
the  premises,  and  that  they  were  owned  by  Ha- 
villa D.  Blakeslee,  and  that  defendant,  relying 
on  such  representations,  and  by  reason  thereof, 
took  a  conveyance  from  Havilla  D.,  paying  him 
therefor  the  sum  of  .$080;  that  defendant  there- 
upon went  into  possession,  and  has  made  ex- 
tensive improvements  on  the  property.  The  an- 
swer also  alleges  that  defendant  has  no  knowl- 
edge or  information  sufhcient  to  form  a  belief 
as  to  whether  the  plaintiff  became  the  owner 
or  received  a  conveyance  on  or  about  December 
3,  1880,  or  entered  into  pos.session. 

Argued  before  HARDIN,  P.  J.,  and  MER- 
WIN  and  PARKER,  JJ. 

M.  N.  Tompkins,  for  appellant  David  M. 
Dean,  for  respondent. 

MERWIN,  J.  Upon  the  trial  of  this  action, 
it  was  shown  on  the  part  of  the  plaintiff  that 
Havilla  D.  Blakeslee,  by  deeds  dated  Septem- 
ber 2.5,  1834,  and  September  22,  1838,  became 
the  owner  of  a  quantity  of  land,  and  thereafter, 
by  deed  dated  December  3,  1880,  and  duly  re- 
corded December  4,  1880,  he,  with  his  wife,  con- 
veyed the  same  to  the  plaintiff,  excepting  10 
acres  theretofore  conveyed  to  the  plaintiff.  The 
premises  in  dispute  are  a  part  of  the  lands  de- 
scribed in  these  deeds.  The  consideration  of  the 
deed  of  December  3,  1880.  as  stated  in  the  deed, 
is  the  sum  of  one  dollar,  and  the  maintenance 
and  support  of  the  parties  of  the  first  part  dur- 
ing their  natural  lives.  It  was  then  shown  on 
the  part  of  the  defendant  that  Havilla  D. 
Blakeslee  and  wife  by  warranty  deed  dated 
December  1,  1882,  and  recorded  December  5, 
1882,  conveyed  the  premises  in  dispute  to  the 
defendant  for  the  consideration  therein  named 
of  $680.  which  defendant  at  the  time  paid  to 
the  grantor,  or  the  person  acting  for  him.     Ha- 


villa D.  Blake.slee  was  the  grandfather  of  plain- 
tiff, and  cvidenc-e  was  given  tending  to  show 
that  plaintiff  at  this  time  lived  with  his  grand- 
parents on  the  farm  of  which  the  premi-ses  in 
question  were  a  part;  that  he  knew  of  the  ne- 
gotiations for  the  purchase  by  defendant  of 
the  grandfather;  that  during  these  negotiations 
the  defendant  saw  the  plaintiff,  told  him  he 
was  talking  about  buying  a  piece  of  land  of  his 
grandfather,  and  had  heard  that  he  (the  plain- 
tiff) had  an  interest  in  it,  and  asked  him  wheth- 
er that  was  so,  and  whether  he  had  any  deed 
or  mortgage  against  it,  and  he  (the  plaintiff)  re- 
plied that  he  had  no  deed  or  mortgage  against 
it,  and  had  no  interest  in  his  grandfather's 
premises;  that  the  plaintiff  at  the  time  Ijnew 
that  he  was  the  legal  owner  of  the  property, 
and  made  the  statement  to  defendant  with  in- 
tent to  deceive  him,  and  induce  him  to  buy  of 
the  grandfather;  that  the  defendant  thereup- 
on, in  reliance  upon  the  truth  of  plaintiff's 
statement,  and  in  ignorance  of  the  true  state 
of  the  title,  made  the  purchase  of  the  grandfa- 
ther. The  plaintiff  denied  making  the  repre- 
sentations or  that  he  knew  that  his  deed  cov- 
ered the  property  conveyed  to  defendant.  It 
was  also  shown  that  plaintiff  was  then  a  minor, 
having  been  born  March  6,  1862.  At  the  close 
of  the  evidence  the  counsel  for  plaintiff  asked 
the  court  to  direct  a  verdict  for  the  plaintiff  up- 
on several  grounds, — chiefly,  that  the  evidence 
upon  the  part  of  the  defendant  was  not  sutti- 
cient  to  constitute  an  estoppel;  that  at  the  time 
of  the  alleged  statements  the  plaintiff  was  an 
infant,  and  that  if  he  made  the  statements  he 
did  not  know  at  the  time  whether  or  not  he 
owned  the  land,  and  that  no  fraud  was  shown 
upon  his  part;  and  that  the  defendant  was 
guilty  of  negligence,  in  not  causing  the  records 
to  be  searched.  The  court  denied  the  motion, 
and  stated  that  in  its  opinion  the  better  way  to 
dispose  of  the  case  was  to  submit  it  to  the  jury 
on  four  questions:  "First,  whether  these  state- 
ments were  made  by  the  plaintiff  to  the  defend- 
ant. Second,  whether  the  plaintiff  had  knowl- 
ede  at  the  time  he  made  them  that  he  was  the 
legal  owner  of  this  land.  Third,  whether  they 
were  made  by  the  plaintiff  with  the  intention 
that  they  should  be  acted  upon  by  the  defend- 
ant in  the  purchase  of  the  land.  Fourth,  wheth- 
er they  were  acted  upon  and  relied  upon  by  the 
defendant  when  the  land  was  purchased  by 
him." 

The  plaintiff's  counsel  duly  excepted  to  such 
ruling,  and  to  the  denial  of  the  motion.  The 
case  was  thereupon  submitted  to  the  jury  upon 
the  line  suggested  by  the  court,  and  a  general 
verdict  rendered  for  the  defendant.  There  was 
no  exception  to  the  charge,  and  no  request  that 
any  other  question  should  be  submitted  to  the 
jury. 

1.  The  first  proposition  now  presented  by 
the  plaintiff  is  that  the  plaintiff,  being  an  infant 
at  the  time  of  making  the  alleged  statements, 
was  not  estopped  thereby.  Assuming,  as  we 
must,  that  the  facts,  so  far  as  warranted  by  the 
evidence,  were  found  against  the  plaintiff,  we 
have  here  a  case  of  intentional  fraud.  In  Spen- 
cer V.   Carr,  45  N.  Y.  400,  where,  as  here,   it 


272 


TITLE. 


was  claimed  that  an  infant  was  barred  of  her 
title  by  an  equitable  estoppel,  it  was  held  that 
in  the   absence   of  intentional   fraud   upon   her 
part   she   would   not   be   estopped,   and   that   as 
that  was  not  found  she  would  not  be  deprived 
of   her  legal   rights.     The   inference  is  that  if 
there  was  intentional  fraud  the  doctrine  of  equi- 
table   estoppel     would    apply,     notwithstanding 
infancy.     The  opinion  of  the  court  in  the  case 
strongly  supports  this  inference  in  cases  where 
the  infants  are  of  sufficient  age  to   appreciate 
their   rights   and   duties.     We   are   referred   to 
no  case  in  this  state  where  the  views  suggested 
in    Spencer   v.   Carr   are   criticised.     In  Brum- 
field^v.  Boutall,  24  Hun,  457,  the  question  of 
fraud  on  the  part  of  the  infant  was  not  up,  nor 
was  it  in   Sherman  v.   Wright,   49   N.  Y.   231. 
The  same  may  be  said  as  to  Ackley  v.  Dygert, 
33  Barb.  17G.      In  Brown  v.  McCune,  5  Sandf. 
224  (decided  in  1851),  it  was  held  that  fraudu- 
lent representations  as  to  his  age  did  not  bind 
an   infant.     This   case   was   criticised,    and   the 
opposite  rule  held,  in  Eckstein  v.  Frank,  1  Daly, 
334.     In  Green  v.  Green,  G9  N.  Y.  553,  a  father 
had  taken  a  deed  from  his  minor  son,  and  paid 
him   the   consideration,    and   the    question    was 
whether  the  son,  on  becoming  of  age,  could  re- 
pudiate the  deed  without  restoring  the  consid- 
eration.    It  was  held  that  he  could,  it  appear- 
ing that  the  money  was  spent,  and  he  had  no 
other  property  with  which  to  replace  it.    There 
was   no   question   of   fraud   in   the   case.     In  1 
Story,  Eq.  Jur.  §  385,  it  is  said,  in  reference  to 
cases  like  the  present,  that:    "Cases  of  this  sort 
are  viewed  with  so  much  disfavor  by  courts  of 
equity  that  neither  infancy  nor  coverture  will 
constitute  any   excuse  for  the  party  guilty  of 
the  concealment  or  misrepresentation,   for  nei- 
ther infants  nor  femes  covert  are  privileged  to 
practice  deception  or  cheats  on  other  innocent 
persons."     In  2  Sugd.  Vend.  (8th  Am.  Ed.)  p. 
507,  c.  23,  §  1,  pi.  17,  it  is  said:    "If  a  person 
having  a  right  to  an  estate  permit  or  encourage 
a  purchaser  to  buy  it  of  another,  the  purchaser 
shall    hold   it  against   the  person   who   has   the 
right,  although  covert  or  under  age."    In  2  Pom. 
Eq.  Jur.  §  815,  it  is  said:    "An  equitable  estop- 
pel arising  from  his  [the  infant's]  conduct  may 
be  interposed,  with  the  same  effect  as  though 
he  were  an  adult,  to  prevent  him  from  affirma- 
tively asserting  a  right  of  property  or  of  con- 
tract   in    contravention    of    his    conduct,    upon 
which  the  other  party  has  relied  and  been  in- 
duced  to   act."     Numerous   cases   are  cited   to 
each  of  the  quoted  propositions.     The  same  rule 
is  stated  in  Bigelow,  Estop,  p.  448.      See,  also, 
note   in   44    Am.   Dec.    386    a^^nifong   v.    Hen- 
dricks);   Bisp.   Eq.   §  293.     There  is  no  doubt, 
in  the  present  case,  that  the  infant  was  of  suf- 
ficient age  to  appreciate  his  rights  and  duties. 
He  lacked  only  a  few  months  of  being  of  age. 
The  rule  to  be  inferred  from  the  Spencer  Case, 
as  to  the   application   of  the  doctrine   of  equi- 
table estoppel  to  infants,  while  it  may  not   be 
entirely  consistent  with  the  supposed  disability 
afld  need  of  protection  of  infants,  has,  I  think, 
the    weight   of   authority   in   its   favor,    and    it 
should    be    followed   by    us   in    this   case.      The 
court   below    therefore   properly   held    that   the 


fact  that  plaintiff  was  an  infant  did  not,  of  it- 
self, relieve  him. 

2.  The  plaintiff  further  claims  that  he  should 
not  be  estopped  because  he  had  no  knowledge 
that  he  owned  the  land  in  dispute.     This,  how-   . 
ever,  upon  the  evidence,  was  a  question  of  fact, 
and  was  found  adversely  to  plaintiff. 

3.  It  is  further  claimed  that  the  burden  of 
proof  is  on  the  defendant,  and  that,  the  testi- 
mony being  evenly  balanced,  defendant  must 
fail.  It  is  true  that  the  burden  of  proof  was 
on  the  defendant,  and  that  statements  testified 
to  by  the  defendant  were  denied  by  the  plaintiff. 
It  was,  however,  for  the  jury  to  determine 
where  the  truth  was,  and  there  were  many  sur- 
rounding circumstances  that  bore  upon  the  ques- 
tion. 

4.  It   is  further   claimed  that   the   defendant 
was   guilty  of  laches,  in  neglecting  to   consult 
the  records  in  the  clerk's  office;    and  the  case 
of   Banking   Co.   v.  Duncan,   86  N.   Y.   221,   is 
cited   in   support   of   the   proposition.     In   that 
case  the  plaintiff,  who  sought  the  benefit  of  an    ■ 
estoppel,  neither  looked  at  the  record  nor  made 
any  inquiry  of  anybody  as  to  the  ownership  of 
the  property,  and  it  was  held  that  its  failure  to- 
examine  the  record  and  make  inquiry  prevented 
its    recovery.     The   present    case    is    materiallj^ 
different.     So,  in  McCullouch  v.  Wellington,  21 
Hun,   5,  there  were  no  representations   by  the 
owner,    but,    as    said    in    the    opinion    at    page 
14,  it  was  the  case  of  a  purchaser,  who,  -from 
his  confidence  in  the  vendor,  or  from  other  cir- 
cumstances not  imputable  to  the  claimant,  has 
purchased   property,   and   omitted  to   make  the 
necessary    and    ordinary    examination    of    title. 
In  Lyon  v.  Morgan  (Sup.)  19  N.  Y.  Supp.  201, 
the  effect  of  failure  to  examine  the  record  was 
not  determined,  and  the  case  was  decided  upon 
other   grounds.      If   the   present   case   was   one 
where  the  owner  was  simply  silent,  it  may  be 
that   the   constructive    notice    from    the   recoi-d 
would  prevent  the  defendant  from  receiving  any 
benefit  from  the  doctrine  of  estoppel.     But,  as- 
suming there  were  false  representations  and  in- 
tentional   fraud,   the    rule    would   be    different. 
Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  65;  Fish- 
er V.  Mossman,   11  Ohio   St.  47.     As  said   by 
Judge  Strong  in  Hill  v.  Epley,  31  Pa.  St.  334, 
"it  should  never  be  forgotten  that  there  is   a 
wide  difference  between  silence  and  encourage- 
ment."    A   party   setting   up   an   equitable   es- 
toppel is  himself  bound  to  the  exercise  of  good 
faith,  and  due  diligence  to  ascertain  the  truth. 
2  Story,  Eq.  Jur.  (12th  Ed.)  §  15.53b.    Whether 
the   defendant,   in   that   respect,   was   negligent,, 
under   the   circumstances   of  the   present   case, 
was  a  question  of  fact.     Moore  v.  Bowman,  47 
N.  H.  494.     The  court  below  was  therefore  cor- 
rect in  holding  that  it  should  not  be  said,  as 
matter  of  law,  that  the  defendant  was  guilty  of 
negligence. 

5.  The  appellant  claims  that  incompetent  tes- 
timony was  admitted,  to  his  prejudice,  but  we 
find  no  ruling  that  supports  this  contention. 

No  other  question  is  presented.  It  follows 
that  the  'judgment  should  be  affirmed. 

Judgment  and  order  affirmed,  with  costs.  All 
concur. 


TITLE  BY  ESTOPPEL. 


273 


GRAY  V.   CROCKETT  et  al. 

(10  Pac.  452,  35  Kan.  6G.) 

Supreme   Court  of  Kansas.     April   9,   1886. 

Error  from  Douglas  county. 

Action  brought  March  3,  1882,  by  B.  Gray 
against  Elizabeth  I.  Crockett,  H.  C.  Long,  and 
Martha  M.  Long,  his  wife,  to  compel  them  to 
convey  to  plaintiff  certain  real  estate.  The  de- 
fendants filed  the  following  answer,  omitting 
court  and  title: 

"First.  They  admit  that  said  Elizabeth  1. 
Crockett  purchased  the  real  estate  described  in 
said  petition,  but  without  any  notice  of  the 
pretended  contract  set  out  in  said  petition,  as 
alleged  to  be  existing  between  said  plaintiff  and 
said  defendant  H.  C.  Long;  and  these  defend- 
ants, further  answering,  say: 

"Second.  The  said  pretended  contract  set  out 
in  said  petition  is  absolutely  void,  and  of  no 
legal  effect,  and  tliat  said  plaintiff  should  not 
be  allowed  to  have  and  maintain  his  action 
thereon,  because  they  say  that  the  said  land 
described  in  said  pretended  contract  was  one 
entire  body  of  land  less  than  one  hundred  and 
sixty  acres  in  amount,  situated  in  Wyandotte 
county,  state  of  Kansas,  and  not  within  the 
limits  of  an  incorporated  town  or  city,  and  was 
at  the  time  of  the  signing  of  said  pretended 
contract  by  said  defendant  H.  C.  Long  occu- 
pied as  a  residence  by  the  family  of  said  H.  C. 
Long  and  the  defendant  Martha  M.  Long,  his 
wife;  and  these  defendants  aver  that  said 
Martha  M.  Long  never  did  sign  said  pretended 
contract,  and  never  in  any  manner  assented 
thei'eto. 

"Third.  They  deny  each  and  every  other  al- 
legation and  averment  contained  in  said  peti- 
tion." 

The  first  trial  was  had  at  the  July  term  of 
court  for  1882.  The  court  then  decided  the 
contract  of  April  22,  1881.  void  and  of  no  ef- 
fect, and  rendered  judgment  for  the  defendants. 
The  plaintiff  brought  the  case  here,  and  the 
judgment  of  the  district  court  was  reversed, 
and  the  cause  remanded  for  a  new  trial.  Gray 
V.  Crockett,  30  Kan.  138,  1  Pac.  50.  At  the 
July  term,  1883,  of  the  court,  Gray  obtained 
judgment  against  the  defendants,  who  brought 
the  case  here.  That  judgment  was  reversed, 
and  the  cause  remanded  for  a  new  trial. 
Crockett  v.  Gray,  81  Kan.  346,  2  Pac.  809. 
On  April  7,  1884,  the  defendants  filed  a  mo- 
tion for  a  change  of  venue,  on  account  of  the 
alleged  bias  and  prejudice  of  the  district  judge. 
Hon.  W.  R.  Wagstaff.  This  motion  was  over- 
ruled. The  defendants  then  filed  another  mo- 
tion for  a  change  of  venue,  for  the  reason  that 
the  district  judge,  Hon.  W.  R.  Wagstaff,  was 
a  material  witness  for  the  defendants  uix)n  the 
trial  of  the  cause,  and  that  the  defendants  de- 
sire to  have  his  testimony.  On  May  2.  1884, 
this  motion  was  sustained,  and  the  cause  sent 
to  the  district  court  of  Douglas  county  for 
ti-ial.  Trial  had  at  the  April  term  of  the  dis- 
trict court  of  that  county  for  1884,  and  in  the 
month  of  July  of  that  year,  a  jury  being  waiv- 
GATES.R.P.— 18 


ed.     The  court  made  the  following  conclusion.s 
of  fact: 

"(1)  That  at  the  time  and  place  mentioned 
in  plaintiff's  petition  plaintiff  made  with  de- 
fendant H.  C.  Long  the  contract  in  said  peti- 
tion stated  and  set  forth;  that  the  lands  in 
said  petition  described  are  the  lands  mentioned 
in  said  agreement,  which  was  reduced  to  writ- 
ing and  signed  by  the  parties  thereto;  (2)  that 
H.  C.  Long  was  a  married  man,  and  witli  his 
wife  lived  upon  said  tract  of  land,  which  was 
situated  witliin  the  city  of  Wyandotte,  and  one 
acre  thereof  constituted  the  homestead  of  H. 
C.  Long  and  wife;  (3)  that  at  the  time  of  the 
making  of  the  aforesaid  written  agreement  said 
Long's  said  wife  was  present,  and  heard  the 
contract  stated,  and  knew  the  terms  and  con- 
ditions thereof,  and  did  not  dis.sent  therefrom, 
excepting  that  she  expressed  a  desire  that  the 
deferred  payments  shall  draw  ten  per  cent.  In- 
terest, instead  of  eight  per  cent.,  as  provided 
in  said  writing;  (4)  that  she  did  not  sign,  and 
was  not  asked  to  sign,  said  contract,  or  to  be- 
come a  party  thereto;  (5)  that  no  money  was 
paid  the  said  Long  upon  said  contract,  but  at 
the  time,  or  before  the  time,  provided  by  said 
contract  for  the  payment  of  money  thereon  the 
plaintiff  offered  to  pay  the  first  payment  of 
money  required  to  be  paid  thereon,  which  pay- 
ment was  refused  by  said  Long,  who  declined 
to  fulfill  the  same;  (G)  that  said  Long  and  wife, 
after  the  making  of  said  contract,  sold  the 
said  lands,  so  agreed  by  said  H.  C.  Long  to 
be  sold  to  said  plaintiff,  to  defendant  Eliza- 
beth I.  Crockett,  who,  before  purchasing  the 
same,  had  notice  of  the  prior  sale  thei'eof  by 
H.  C.  Long  to  plaintiff,  excepting  that  said 
Long  did  not  sell  to  said  Crockett  one  acre 
and  seven-tenths  thereof;  (7)  that  the  price  paid 
for  the  portion  of  said  lands  purchased  by  said 
Crockett  was  $8,500;  (8)  that  in  the  year"  18G0. 
and  on  the  thirteenth  day  of  September  of  said 
year,  said  Long  made  a  conveyance  of  the 
lands  mentioned  in  the  said  contract  of  sale 
by  H.  C.  Long  to  plaintiff  to  one  R.  L.  Vedder, 
who  received  said  conveyance  from  said  Long, 
and  took  and  delivered  the  same  to  the  regis- 
ter of  deeds  of  Wjandotte  county  for  record, 
but  did  not  pay  the  fee  for  recording  the  same; 
that  said  register  of  deeds  received  the  said 
conveyance,  and  deposited  the  same,  with  oth- 
er deeds,  within  his  office,  where  the  same  re- 
mained until  the  same  was  found  by  the  regis- 
ter of  deeds  of  said  Wyan.lotte  county  in  the 
fall  of  the  year  1883;  (Sy^)  that  said  deed  was 
unrecorded  by  said  register,  and  would  have 
been  found  only  by  a  person  having  such 
knowledge  of  the  business  management  of  said 
oflice  as  to  induce  an  investigation  of  the  pack- 
age containing  the  same,  being  with  other  old 
and  unrecorded  deeds  in  said  office:  (9)  that  on 
the  fourth  day  of  December,  18G0.  said  Rich- 
ard L.  Vedder  conveyed  said  lands  by  deed, 
with  warranty,  to  ^^artha  M.  Long,  the  wife 
of  said  H.  C.  Long,  which  conveyance  was  duly 
recorded  in  the  office  of  the  register  of  deeds 

of  Wyandotte  county  on  the day  of , 

18G9;    (10)   that   the  plaintiff  had  no  actual 


274 


TITLE. 


knowledge  of  either  of  said  deeds  from  Long 
to  Vedder,  aud  fruiu  Vedder  to  Mrs.  Long,  until 
July,  1883." 

And  thereon  the  court  made  the  following 
conclusions  of  law: 

"(1)  That  at  the  time  of  the  making  of  the 
contract  of  sale  set  out  in  the  plaintiff's  peti- 
tion, Martha  M.  Long  was  the  owner  in  fee- 
simple  of  the  real  estate  in  said  contract  men- 
tioned and  described;  (2)  that  she  is  not  es- 
topped from  asserting  her  ownership  of  or  title 
to  the  same,  and  every  part  thereof,  by  reason 
of  any  act  of  hers  suffered  or  done  at  the  time 
or  before  or  since  the  making  of  the  contract 
between  the  plaintiff'  and  H.  C.  Long  set  up  by 
the  plaintiff  in  this  action;  (3)  that  plaintiff  in 
this  action  is  not  entitled  to  a  specific  per- 
formance of  said  contract;  (4)  that  defendants 
are  entitled  to  judgment  in  this  action  for 
costs,  and  it  is  so  ordered." 

The  plaintiff  excepted  to  all  the  findings  of 
fact,  and  also  to  the  conclusions  of  law.  Judg- 
ment was  entered  in  favor  of  the  defendants 
for  costs.  Plaintiff  excepted,  and  brings  the 
case  here. 

N.  Cree,  J.  W.  Green,  and  B.  Gray,  for 
plaintiff  in  error.  Stevens  &  Stevens  and  J. 
B.  Scroggs,  for  defendants  in  error. 

HORTON,  C.  J.  It  is  claimed  by  the  plain- 
tiff that  the  order  directing  the  trial  of  this 
cause  to  be  had  in  Douglas,  instead  of  Wyan- 
dotte, county,  is  void,  and,  if  not  void,  is  at 
least  erroneous.  The  order  was  based  upon  the 
affidavit  of  H.  C.  Long,  one  of  the  defendants, 
setting  forth  "that  he  was  advised  by  his  at- 
torney that  Hon.  W.  R.  Wagstaff,  the  district 
judge,  was  a  material  witness  for  the  defend- 
ants upon  the  trial;  that  he  believed  the  ad- 
vice to  be  true;  and  that  he  desired  the  testi- 
mony of  the  judge  at  the  trial,  and  intended 
to  procure  the  same  if  a  change  of  venue  was 
granted." 

Section  5G  of  the  Civil  Code  reads: 

"In  all  cases  in  which  it  shall  be  made  to 
appear  to  the  court  that  a  fair  and  impartial 
trial  cannot  be  had  in  the  county  where  the 
suit  is  pending,  or  when  the  judge  is  interested. 
or  has  been  of  counsel  in  the  ease  or  subject- 
matter  thereof,  or  is  related  to  either  of  the 
parties,  or  is  otherwise  disqualified  to  sit,  the 
court  may.  on  application  of  either  party, 
change  the  place  of  trial  to  some  county  where 
such  objection  does  not  exist." 

The  contention  is  that  a  district  judge  is  not 
"disqualified  to  sit,"  even  if  a  material  witness 
in  a  case,  and  that  the  affidavit  upon  which  the 
I  order  changing  the  place  of  trial  to  Douglas 
county  was  made  was  insufficient,  in  that  it 
did  not  set  out  what  the  defendants  expected 
to  show  by  the  judge,  nor  was  it  otherwise 
made  to  clearly  appear  that  the  judge  was  a 
material  witness. 

We  do  not  think  the  order  of  the  court  void. 
A  judge  is  not  competent  as  a  witness  in  a 
cause  tried  before  him,  for  this,  among  other 
reasons:  tliat  he  can  hardly  be  deemed  capable 
,of  impartially  deciding  upon  the  admissibility 


of  his  own  testimony,  or  of  weighing  it  against 
that  of  another.  It  is  now  well  settled  that 
the  same  person  cannot  be  both  witness  and 
judge  in  a  cause.  1  Greenl.  Ev.  (12th  Ed.)  § 
364;  Ross  v.  Buhler,  2  Mart.  (N.  S.)  312;  2 
Bouv.  Law  Diet.  12.  Therefore  we  think  that 
where  a  judge  is  a  material  and  necessaiy  wit- 
ness in  a  case,  he  is  "disqualified  to  sit."  If 
the  district  court  had  overruled  the  application 
to  change  the  place  of  trial  upon  the  affidavit 
presented,  we  would  unhesitatingly  pronounce 
the  ruling  eminently  correct,  becaase  it  seems 
to  us  that  the  true  rule  in. such  a  case  is  that 
such  facts  and  circumstances  must  be  proved 
by  affidavits,  or  other  extrinsic  evidence,  as 
clearly  show  that  the  judge  is  a  material  and 
necessaiy  witness,  and  unless  this  clearly  ap- 
pears a  reviewing  court  will  sustain  an  over- 
ruling of  the  application.  City  of  Emporia  v. 
Volmer,  12  Kan.  622.  The  aflSdavit  in  this 
case  for  the  change  of  venue  should  have  dis- 
closed how  the  attorneys  obtained  knowledge 
of  the  fact  that  the  district  judge  was  a  ma- 
terial witness,  and  all  the  facts  the  defendants 
believed  the  judge  would  prove.  This  was  not 
done;  but,  although  the  affidavit  is  deficient  in 
this  respect,  we  cannot  wholly  ignore  the  per- 
sonal knowledge  of  the  judge  who  transferred 
the  case.  A  judge  ought  not  to  transfer  a 
case  upon  a  mere  suggestion,  or  even  upon  an 
affidavit  stating  conclusions  only,  and  no  change 
of  venue  should  be  granted  except  for  cause, 
true  in  fact  and  sufficient  in  law,  and  all  of  this 
should  be  made  to  clearly  appear  to  the  court; 
but  when  an  affidavit  is  presented  in  general 
terms  for  such  a  change,  and  the  judge  has 
personal  knowledge  that  he  is  disqualified  to 
sit,  a  change  of  venue  ordered  by  him  upon  the 
affidavit,  and  his  own  personal  knowledge  that 
he  is  disqualified,  cannot  be  declared  erroneous. 
City  of  Emporia  v.  Volmer,  supra;  Edwards  v. 
RusseU,  21  Wend.  68;  Moses  v.  Julian,  45  N. 
H.   52. 

The  contract  set  forth  in  the  petition  is  as 
follows: 

"April  22,  1881. 

"Agreement  between  H.  C.  Long  and  B.  Gz'ay 
for  sale  of  his  farm  of  thirty-three  acres,  south 
side  of  Tauraume  street,  Wyandotte,  for  eight 
thousand  dollars.  Said  Long  agrees  to  sell  the 
said  farm  for  $8,000,  payable  as  follows:  $500 
by  the  twenty-eightli  of  April  inst.;  $1,500  in 
three  months  from  date;  and  balance,  $6,000, 
in  three  years, — with  interest  at  8  per  cent. 
Gray  agrees  to  make  payments  as  above,  and 
pay  Armstrong's  commission,  not  exceeding 
$100.  Gray  to  have  possession  when  $2,000  is 
paid,  and  deed  then  to  be  given,  and  mortgage 
then  given  to  Long  for  three  years,  at  eight 
per  cent,  interest,  with  the  privilege  of  paying 
the  whole  or  part  sooner. 

"H.  C.  Long. 
"B.  Gray." 

The  principal  and  the  important  question 
involving  the  merits  of  this  case  arises  up- 
on the  following  finding  of  fact: 

"At  the  time  of  the  making  of  the  written 
agreement  Martha  M.  Long,   wife  of  H.   G. 


TITLE  BY  ESTOPPEL. 


275 


Long,  was  present,  heard  the  contract  stat- 
ed, knew  the  terms  and  conditions  thereof, 
and  did  not  dissent  therefrom,  excepting  she 
expro.ssed  a  desire  that  tlie  deferred  payments 
shoidd  draw  ten  per  cent,  interest  instead  of 
eight  per  cent.,  as  provided  in  the  contract." 

A  further  finding  of  the  trial  court  is  to 
the  effect  that  Mrs.  Long  was  tlie  owner  in 
f^e-simple  of  the  real  estate  in  controversy; 
and,  as  a  conclusion  of  law,  upon  all  the 
facts  found,  the  court  decided  that  Mrs. 
Long  was  not  estopped  from  asserting  her 
ownership  or  title  to  the  same  by  reason  of 
any  act  of  hers  suffered  or  done  l)efore,  at 
the  time,  or  since  the  making  of  the  written 
contract  of  April  22d.  At  the  time  of  the 
execution  of  this  contract  Long  and  wife 
lived  upon  the  land  within  the  city  of  Wy- 
andotte, and  the  deed  from  H.  C.  Long  to 
Richard  L.  Vedder,  of  September  13,  18G0, 
under  which  Mrs.  Long  claims  title,  was  un- 
recorded, rt  had  been  delivered  to  the  reg- 
ister of  deeds  of  Wyandotte  county  for  rec- 
ord in  the  year  1860,  but  was  placed  with 
other  deeds  in  a  package,  where  it  remained 
until  found  by  the  register  in  the  fall  of 
1883.  It  could  only  have  been  found  by  a 
person  having  such  knowledge  of  the  busi- 
ness management  of  the  register's  office  as 
to  induce  an  investigation  of  the  package 
containing  the  same.  The  written  contract 
shows  upon  its  face  that  H.  C.  Long  sold  the 
land  as  his  own.  It  is  indisputable  that  the 
plaintiff  supposed  he  was  dealing  with  Long 
as  the  owner  of  the  land;  and  that  both 
husband  and  wife  were  willing  to  sell  is 
evident  from  the  fact  that  they  did  shortly 
thereafter  sell  at  an  advance.  Mrs.  Long 
asserted  no  title  to  the  premises  until  after 
the  decision  of  this  court,  in  June,  1883,  that 
the  land  was  within  the  hmits  of  the  city  of 
Wyandotte,  and  therefore  tliat  only  one  acre 
thereof  was  exempt  as  a  homestead.  Gray  v. 
Crockett,  30  Kan.  138,  1  Pac.  50.  This  was 
more  than  two  years  after  the  execution  of 
the  written  contract.  Upon  tlie  belief  that 
Long  was  the  owner  of  the  land,  the  plain- 
tiff commenced  his  suit  for  a  specific  per- 
formance of  his  contract  on  March  3,  1882. 
This  suit  was  prosecuted  by  him  for  over  a 
year  without  Mrs.  Long  making  her  title 
known,  and  the  money  and  time  of  the 
plaintiff  was  expended  in  his  attempt  to  ob- 
tain the  conveyance  which  H.  C.  Long  had 
agreed  to  execute.  When  the  case  M^as 
tried  at  the  July  term  of  the  court  for  1882, 
it  was  admitted  by  all  the  parties,  for  the 
purposes  of  the  trial,  that  on  April  22,  1881, 
H.  C.  Long  was  the  owner  of  the  land  de- 
scribed in  the  contract. 

Upon  the  findings  of  fact,  we  think  Mrs. 
Long  is  estopped,  in  equity,  from  now  as- 
serting that  at  the  time  of  the  contract  be- 
tween the  plaintiff  and  her  husband  she  was 
the  owner  of  the  premises  described  therein. 
Questions  relative  to  estoppel  are  not,  in 
general,  controlled  by  technical  rules,  but 
-are  usually  determined  upon  principles  of 


equity  and  good  conscience.  Mrs.  Long 
stood  by  and  allowed  the  contract  to  be 
executed;  to  some  extent  she  participated 
in  the  negotiations  preliminary  to  the  exe- 
cution of  the  contract.  Her  silence  as  to 
her  title,  her  acquiescence  at  the  time  of  the 
contract,  and  her  failure  to  disclose  her  title 
during  the  earlier  stages  of  this  litigation, 
invoke  against  her  the  familiar  rule  of  jus- 
tice, that  if  one  stands  by  and  allows  an- 
other to  purchase  his  property  without  giv- 
ing him  any  notice  of  his  title,  a  court  of 
equity  will  treat  it  as  fraudulent  for  the 
owner  to  afterwards  try  to  assert  his  title. 
"He  who  will  not  speak  when  he  should, 
will  not  be  allowed  to  speak  when  he 
would."  Goodin  v.  Canal  Co.,  18  Ohio  St. 
1G9;  Tilton  v.  Nelson,  27  Barb.  59.3;  Foster 
V.  Bigelow,  24  Iowa,  379;  Anderson  v.  Arm- 
stead,  G9  111.  452;  Thompson  v.  Sanborn,  11 
N.  H.  201;  Ford  v.  Loomis,  33  Mich.  121; 
Beatty  v.  Sweeney,  2G  Mich.  217;  Dougrey 
V.  Topping,  4  Paige,  93. 

Judge  Thompson,  in  an  article  concerning 
estoppels  against  married  women,  says: 

"If  a  married  woman  owns  real  property, 
but  her  title  is  not  of  record,  and  her  hus- 
band enters  into  a  contract  for  the  sale  of 
it,  of  which  she  is  informed  at  the  time, 
and  to  which  she  makes  no  objection,  she 
will  be  estopped  from  setting  up  her  title 
to  the  land  to  defeat  a  suit  brought  against 
her  husband  for  specific  performance  of  his 
contract,  and  so  would  her  grantee."  8 
South.  Law  Rev.  (N.  S.)  275-310;  Smith  v. 
Armstrong,  24  Wis.  44G;  Catherwood  v.  Wat- 
son, 05  Ind.  576. 

We  are  of  the  opinion,  therefore,  that  the 
conclusion  of  law  of  the  trial  judge  that 
Mrs.  Long  was  not  estopped  from  asserting 
her  ownership  or  title  to  all  the  premises  in 
dispute  is  erroneous,  and  cannot  be  sus- 
tained. 

It  is  again  insisted  that  defendants  are  en- 
titled to  judgment,  even  though  the  home- 
stead included  only  one  acre,  as  the  con- 
tract was  for  the  entire  tract  at  a  price  in 
gross,  and  not  so  much  per  acre;  and  as  the 
homestead  acre  was  inalienable  by  the  hus- 
band alone,  and  was  in  no  manner  identified 
in  the  contract  or  its  price  determined,  that 
there  is  no  way  of  apportioning  the  price  of 
the  32  acres  which  the  husband  could  sell. 
In  addition  to  what  is  stated  upon  this  point 
in  the  former  opinion  of  this  court  in  Crock- 
ett V.  Gray,  31  Kan.  340,  2  Pac.  809,  it  ap- 
pears to  us  from  the  record  that  H.  C.  Long 
and  wife  have  no  real  complaint  to  make. 
Upon  the  trial  the  plaintiff  offered  these  de- 
fendants the  privilege  of  selecting  their  own 
homestead;  therefore  they  will  have  the 
right  to  retain  anj^  acre  of  the  land  describ- 
ed in  the  contract  which  they  may  choose. 
The  plaintiff  only  asks  that  his  contract  be 
enforced  after  these  defendants  select  and 
retain  one  acre  thereof.  As  was  said  by 
Mr.  Justice  Brewer,  speaking  for  this  court 
when  the  case  was  last  presented  to.  us  for 


276 


TITLE. 


our  determination,  "It  is  equitable  that  the 
contract  of  April  22,  ISSl,  be  enforcecl  so  far 
as  is  possible,  and  not  that  the  contracting 
party  be  permitted  to  avoid  his  contract 
obligations."  When  Mrs.  Crockett  purchas- 
ed she  had  notice  of  the  prior  sale  of  the 
premises  to  plaintiff,  and  therefore  acted  ' 
with  full  Ivuowledge  of  all  his  rights.  Meix- 
ell  V.  Kirlipatricli,  33  Kan.  282,  6  Pac.  241. 
L.  H.  Wood  was  the  agent  for  Mrs.  Croclj- 
ett,  and  when  she  purchased,  on  December 
24,  ISSl,  she  had  no  actual  knowledge  of 
the  deed  from  Long  to  Vedder  of  September 
30,  1860.  This  deed  was  found  by  Wood  in 
a  package  In  the  register's  office  about  Sep- 
tember 10,  1883;  therefore  Mrs.  Crockett 
bought  the  land  with  ignorance  of  the  title 
of  ]Mrs.  Long,  and,  like  the  plaintiff,  sup- 
posed she  was  dealing  with  Long  as  the 
owner.  After  the  first  trial  of  this  case 
Mrs.  Crockett  became  afraid  of  her  title, 
and  desired  to  sell  the-  land.  L.  H.  Wood 
then  negotiated  a  sale  of  it  from  her  to  his 
father-in-law,  the  latter  paying  the  same 
price  that  Mrs.  Crockett  did,  with  interest 
on  her  money.  As  all  of  these  sales  were 
made  through  L.  H.  AVood,  and  as  he  acted 
as  agent  both  for  Mrs.  Crockett  and  his  fa- 
ther-in-law, and  had  notice  of  all  the  rights 
of  plaintiff,  the  latter  parties  are  charged 
with  his  knowledge.  Wood,  and  the  princi- 
pals for  whom  he  acted,  dealt  with  the  land 
as  that  of  Long,  upon  the  belief  that  the 
contract  of  April  22,  1881,  could  be  avoided 
solely  because  the  land  described  therein 
was  outside  of  the  limits  of  the  city  of 
Wyandotte,  and  therefore,  being  the  home- 
stead of  H.  C.  Long  and  wife,  could  not  be 
alienated  without  their  joint  consent.  The 
attempt  to  set  aside  the  contract  of  April  22, 
1881,  upon  the  ground  that  Mrs.  Long  was. 


then  the  owner  of  the  premises,  is  an  after- 
thougiit,  evidently  not  contemplated  when 
the  joint  answer  of  the  defendants  wsla 
filed. 

The  statute  provides  that  in  cases  decided 
by  this  court  when  the  facts  are  found  by 
the  coiu-t  below,  this  court  will  send  a  man- 
date to  the  court  below  directing  it  to  ren- 
der such  judgment  in  the  premises  as  it 
should  have  rendered  upon  the  facts  found. 
Under  the  statute,  therefore,  in  view  of  the 
conclusion  obtained,  as  none  of  the  findings 
are  excepted  to  by  the  defendants,  the  cause 
must  be  remanded,  with  directions  to  enter 
judgment  for  the  plaintiff.  Code,  §  559.  Of 
course  the  plaintiff  is  only  entitled  to  the 
enforcement  of  the  contract  of  H.  C.  Long. 
He  did  not  bargain  for  or  purchase  the  sup- 
posed inchoate  interest  of  Mrs.  Long.  She 
did  not  sign  the  contract,  and  was  not  asked 
to  sign  the  same.  The  plaintiff  is  entitled 
to  what  his  written  contract  calls  for.  The 
decree,  however,  for  the  specific  perform- 
ance of  the  contract,  as  well  on  the  part  of 
H.  C.  Long  as  of  Mrs.  Crockett,  must  be  so- 
framed  as  to  fully  protect  such  inchoate  in- 
terest of  Mrs.  Long,  as  the  wife  of  H.  C. 
Long,  whether  owned  by  herself,  or,  subse- 
quent to  the  contract,  transferred  to  her  co- 
defendant  Mrs.  Crockett.  The  rights  of  the 
plaintiff  are  the  same  as  though  the  deed 
from  H.  C.  Long  to  Richard  L.  Vedder,  of 
September  13,  1860,  had  never  been  execut- 
ed, and  as  though  there  had  been  no  convey- 
ance subsequent  to  thp  contract  from  H.  C. 
Long  to  Elizabeth  I.  Crockett. 

The  judgment  of  the  district  court  will  be 
reversed,  and  the  cause  remanded  for  fur- 
ther proceedings'  in  accordance  with  the 
views  herein  expressed. 

AU  the  justices  concurring. 


TITLE  BY  ESTOPPEL. 


277 


PT'MXER  V.  SEATOX. 

(19  Atl.  884,  47  N.  J.  Eq.  103.) 

Court   of   Chancery   of   New   Jersev.      yiav    22, 
1890. 

Bill  for  injunction.  On  final  hearing  on 
pleadings  and  proofs. 

George  Putnam  Smith  and  F.  G.  Burn- 
liam,  lor  complainant.  Frank  Bergen,  for 
defendant. 

PITNEY,  V.  C.  Complainant  rested  her 
right  to  relief  on  three  grounds:  First,  that 
tlie  effect  of  the  proceedings  to  cliange  the 
location  of  the  street  was  to  vest  in  her  t!ie 
absolute  legal  title  to  the  strip  in  question; 
second,  that  if  the  effect  was  not  to  change 
the  title  at  law  it  did  in  equity;  and,  third, 
that  the  defendant  is  estopped  by  his  silence 
and  acquiescence,  while  complainant  was 
making  her  improvements,  from  setting  up 
his  title  as  against  her. 

As  to  the  first  point.  Should  the  com- 
plainant satisfy  the  court  that  it  is  well  tak- 
en, the  result  would  be  simply  to  oust  the  ju- 
risdiction of  the  court,  for  the  simj)le  reason 
that  the  ground  is  available  at  law  as  a  de- 
fense to  an  action  of  ejectment.  The  pro- 
ceeding here  is  and  must  be  on  the  basis  that 
the  legal  title  is  in  the  defendant;  and  as 
there  has  been  a  general  verdict  rendered  by 
a  judge  without  a  jury,  in  favor  of  the  de- 
fendant herein,  and  judgment  entered  there- 
on, it  must  have  been  upon  a  finding  that 
the  legal  title  is  in  him. 

The  second  point  presents  a  more  serious 
question.  Mrs.  Smith  owned  a  lot  witli  500 
feet  of  frontage  on  a  street  in  the  city  of 
Elizabeth.  As  so  situated,  it  was  admitted 
tiiat  it  had  great  value.  The  city  council 
changed  the  location  of  the  street  in  front  of 
it  in  such  a  manner  as  to  cut  off  access  from 
this  lot  to  the  street  by  interposing  in  front 
of  it  land  belonging  to  a  third  party.  That 
such  a  change  must  result  in  a  serious  injury 
to  the  value  of  the  lot  is  obvious;  yet  not 
only  were  no  damages  awarded  to  Mrs.  Smith, 
but  a  commission  actually  assessed  a  large 
sum  against  lier  for  benelits  conferred  upon 
her  lot,  and  when  the  feature  in  question  was 
called  to  the  attention  of  the  municipal  au- 
thorities they  refused  to  abate  it.  Complain- 
ant urges,  and  I  think  rightly,  that  the  action 
of  the  commission  and  the  common  council 
can  be  accounted  for,  consistently  with  the 
least  intention  on  their  part  to  act  fairly  and 
justly  towards  Mrs-.  Smith,  only  on  the  ground 
that  they  supposed  that  the  effect  of  the  pro- 
ceeding was  to  vest  in  her  the  beneficial  use 
of  the  intervening  strip.  It  Is  impo.isible  to 
suppose  that  five  gentlemen,  chosen  on  ac- 
count of  their  intelligence,  good  judgment, 
and  honesty,  would  make  such  an  award  on 
any  other  basis,  or  that  an  impartial  city 
council  would  confirm  it.  These  ofticials  can- 
not be  supposed  to  have  been  ignorant  of  the 
true  situation  of  the  property  lines,  for  not 
only  was  their  attention  called  to  it  by  the 


written  protest  of  Mr.  Smith,  but  the  map 
shows  it  u)ost  clearly.  For  tlu^se  reasons  1 
think  it  must  bo  assumed  that  the  whole  pro- 
ceedings, as  well  the  ascertainment  of  dam- 
ages as  the  assessment  on  account  of  Ijen- 
efits,  must  have  proceeded  on  the  basis 
or  assumption  that  the  strip  in  question 
would  become  the  property  of  Mrs.  Smith. 
The  effect  of  this  assumption  is  ob\ions. 
The  sum  total  or  aggregate  of  the  cost  of  the 
improvement  was  reduced  by  the  amount 
which  the  city  would  have  been  obliged  to 
pay,  if  anything,  to  Mrs.  Smith  for  damages 
to  her  lot  caused  by  cutting  it  off  fi-om  the 
street;  and  the  amount  to  be  assessed  against 
the  other  lots,  not  situated  in  tins  respect  the 
same  as  hers,  was  reduced  by  the  amount 
actually  assessed  against  her  lot,  and  paid  by 
her.  Presumably,  then,  every  other  person 
liable  to  assessment  derived  a  direct  pecuniary 
benefit  from  the  assumption  in  question  ;  and 
there  is,  to  my  mind,  great  force  in  the  argu- 
ment that  all  the  land-owners  who  partici- 
pated in  the  fruits  of  this  assumption  became 
parties,  so  to  speak,  to  the  arrangement,  and 
are  estopped  from  setting  up  the  contrary  of 
the  assumption  upon  which  it  was  based,  and 
from  vvhicli  they  received  a  direct  benefit. 

But  the  defendant  was  not  mentioned  in 
the  assessment  on  account  of  benefits,  and  it 
was  not  proved  that  he  had  anything  to  do 
with  it,  or  that  he  made  any  individual  ar- 
rangement with  the  common  council  on  the 
assumption  before  mentioned.  It  is  not 
shown  that  he  knew  anything  of  it,  or  of  the 
commissioners'  last  assessment.  And  I  do 
not  at  this  moment  perceive  how  the  couit 
can  presume  anything  against  him  in  this 
respect.  But  counsel  for  the  complainant 
relies  in  this  connection  upon  the  release  ex- 
ecuted by  the  defendant,  as  above  set  forth. 
He  argues  that  it  must  be  read  and  construed 
in  the  light  of  the  actual  facts  and  features 
of  the  scheme  of  improvement,  one  of  which, 
by  the  maps  and  assessments,  appeared  to  be 
that  whatever  land  the  north-side  owners 
might  own  south  of  the  south  line  of  the  new 
street  sliould  go  to  the  owners  on  that  side, 
and  that  such  feature  clearly  appeared  by  the 
inspection  of  the  map  on  tile  in  the  proper 
department  of  tlie  municipal  government; 
and  he  argues  that  the  land  so,  in  effect,  at- 
tempted to  be  transferred  from  the  defendant 
to  the  complainant's  grantor,  is  fairly  included 
in  and  covered  by  the  languageof  the  release, 
as  "land  and  real  estate  taken  and  appro- 
proj)rialed  by  the  city  for  the  straightening 
of  llahway  avenue."  In  this  connection  it 
is  important  to  observe  that  the  payment 
was  made  to  defendant,  and  the  release 
in  question  executed  by  him  in  July,  1875, 
long  after  the  strip  in  question  had  been 
fenced  in  and  inclosed  by  complainant's 
grantor,  and  her  improvements  in  part  made, 
so  that  defendant,  when  he  executed  the  re- 
lease and  accepted  the  iuoney,  must  have 
known  by  observation  just  what  the  effect  of 
the  improvement  was,  and  that  the  com- 
plainant supposed  that  she  owned  this  land, 


278 


TITLE. 


and  was  acting  on  tliat  supposition.  The 
power  of  a  municipal  corporation,  in  the  ab- 
sence of  objection,  to  acquire  land  and  trans- 
fer it  to  a  natural  person  as  a  part  of  a  sclieme 
of  legitimate  improvement,  is  sustained  by 
judicial  decision.  Embury  v.  Conner,  3  N. 
y.  511;  Sherman  v.  McKeon,  38  N.  Y.  266. 

But  I  have  not  found  it  necessary  to  deter- 
mine definitely  wliether,  upon  the  second 
ground  alone,  complainant  is  entitled  to  suc- 
ceed in  this  court.  This  part  of  the  c-ase, 
however,  has,  in  my  judgment,  an  iuipDrlant 
bearing  on  complainant's  third  position; 
since  1  think  the  circumstances  referred  to 
fully  justified  Mrs.  Smith  and  her  daughter, 
the  complainant,  in  supposing  and  believing 
that  the  effect  of  the  improvement  was  to 
give  her  the  beneficial  title  to  the  strip  in 
question,  and  that  she  and  her  assignee,  the 
complainant,  acted  in  good  faith  on  that  as- 
sumption. In  answer  to  this  inference,  de- 
fendant contended  that  the  protest  of  Mrs. 
Smith's  husband,  above  set  forth,  shows  that 
she  had  notice  of  the  fact  that  defendant  liad 
the  legal  title  to  the  land  in  dispute.  But  on 
that  point  it  is  to  be  observed — First,  that 
the  land  here  in  dispute  was  marked  on  the 
map  as  belonging  to  Wetmore,  who  was  a 
party,  so  to  speak,  to  the  assessment,  and 
bound  thereby:  seiond,  that  Mrs.  Smitii'sson, 
wiio  prepared  the  protest,  swears  tliat  his 
mother  knew  nothing  of  it;  tidrd,  that  he 
concluded,  upon  consideration,  tliat  the  effect 
of  the  proceeding  was  to  vest  the  benelicial 
title  in  the  strip  in  his  mother,  and  so  paid 
the  assessment  without  further  question; 
fourth,  tliat  the  complainant  is  not  ch;irge- 
able  with  knowledge  of  the  protest,  and  she 
and  her  husband  deny  all  notice  of  any  de- 
fect of  title. 

This  brings  us  to  the  third  ground,  name- 
ly, estoppel  by  acquiescence  and  silence. 
Here  complainant  relies  upon  the  familiar 
maxim  that  \>here  a  man  lias  been  silent 
when  in  conscience  he  ought  to  have  spoken, 
he  shall  be  debarred  from  speaking  when  con- 
science requires  iiim  to  be  silent;  or,  as  it  is 
otherwise  expressed,  qui  taoet,  consentire 
videtur;  qui  potest  et  debet  vetare,  jabet  si 
non  vetat.  In  Wendell  v.  Van  Bensselaer, 
1  Johns.  Ch.  344,  Chancellor  Kent,  at  page 
;j54,  says:  "There  is  no  principle  better  es- 
tablished in  this  court,  nor  one  founded  on 
more  solid  foundations  of  equity  and  public 
utility,  than  that  which  declares  that  if  one 
man  knowingly,  though  he  does  it  passively, 
by  looking  on,  suffers  another  to  purchase  and 
expend  money  on  land,  under  an  erroneous 
opinion  of  title,  without  making  known  his 
claim,  he  shall  not  afterwards  be  permitted 
to  exercise  his  legal  right  against  such  per- 
son. It  would  be  an  act  of  fraud  and  injus- 
tice, and  his  conscience  is  bound  by  this 
equitable  estoppel."  This  doctrine  was  ap- 
proved by  Chancellor  Pennington  in  Ross  v. 
Kailroad  Co.,  2  X.  J.  Eq.  422,  at  page  4o4; 
by  the  court  of  appeals  in  Doughty  v.  Dough- 
ty, 7  N.  J.  Eq.  643,  at  page  650;  and  has 
since  been  recognized  in  many  cases  in  this 


court,  and  was  acted  upon  by  Chief  Jus- 
tice Beaslky,  sitting  for  the  chancellor,  in 
Erie  By.  Co.  v.  Delaware,  L.  &  W.  B.  Co.,  21 
N.  J.  Eq.  283,  at  page  288  et  seq.,  and  by 
A^ice- Chancel  lor  Bikd  in  Swayze  v.  Carter, 
41  X.  J.  Eq.  231.  3  Atl.  Uep.  706. 

The  only  question  that  has  ever  been  rarsed 
as  to  the  value  of  the  maxim  is  that  its  ap- 
plication to  particular  cases  is  sometimes  dif- 
ficult and  embarrassing,  and  requires  great 
care  and  discrimination.  See  Philhower  v. 
Todd,  11  N.  J.  Eq.  312,  at  page  315.  But 
this  may  be  said  of  all  the  fundamental  max- 
ims and  principles  of  equity,  and  must  not 
deter  the  equity  judge  from  applying  them 
where  properly  applicable.  Several  canons 
have  been  suggested  by  the  judges  as  guides 
in  this  work,  but,  in  construing  them,  we 
must  not  lose  sight  of  the  facts  in  the  partic- 
ular casein  which  tliey  have  been  enunciated, 
and  must  interpret  them  accordingly.  Lord 
CuANAVOUTH,  in  the  house  of  lords  in  Baras- 
den  V.  Dyson,  L.  R.  1  H.  L.  129,  at  page  141, 
after  stating  the  principle  with  great  clear- 
ness, says  that,  in  order  that  the  maxim  shall 
be  applicable  to  a  case  of  this  sort,  viz.,  the 
estoppel  by  expenditure  of  money  on  land,  it 
must  have  three  features— Fi;■6•^  the  person 
expending  the  money  must  lionestly  supjiuse 
himself  to  be  the  owner  of  the  land;  and, 
secondly,  the  real  owner,  who  encourages 
the  expenditure  by  his  silence,  must  know 
that  the  land  belongs  to  him,  and  not  to  the 
other;  and,  thirdly,  that  the  other  is  acting 
on  an  erroneous  belief  as  to  its  ownership. 
The  canon  was  applied  by  Chancellor  Run- 
yon  in  Kirchner  v.  Miller,  39  N.  J.  Eq.  355. 

With  regard  to  the  first  of  these  requisites,  I 
have  already  shown  that  Mrs.  Smith  and  her 
grantee,  the  complainant,  were  fully  justified 
in  supposing,  and  did  actually  suppose,  that 
the  land  belonged  to  them.  But  counsel  for 
the  defendant  insisted  that  both  Mrs.  Smith 
and  complainant  are  chargeable  with  notice 
of  the  record  title  of  defendant,  and  argued 
that  they  had  no  right  in  the  face  of  it  to 
suppose  that  they  had  title.  I  cannot  accede 
to  tills  argument.  In  the  first  place,  I  do  not 
understand  that  the  strength  of  complain- 
ant's proposition  depends  at  all  upon  her  want 
of  knowledge  that  defendant  held  the  legal 
title  to  this  land.  If  she  be  chargeable  with 
full  knowledge  of  all  the  record  discloses  in 
that  respect,  still  the  question  remains,  were 
not  she  and  her  mother  justified  in  supposing 
that  this  strip,  reclaimed,  so  to  speak,  by  the 
municipal  action  from  an  ancient  highway, 
became,  in  some  way,  and  as  a  result  of  those 
proceedings,  her  property?  But  if  the  case 
were  wanting  in  that  element,  still  I  do  not 
think  defendant's  position  tenable.  Courts 
of  equity  have  in  many  cases  given  parties 
the  benefit  of  an  honest  supposition  as  to  ti- 
tle, where  the  slightest  examination  of  tlie 
record  or  other  equally  available  source  of  in- 
formation would  have  disclosed  their  error. 
In  fact,  to  exclude  the  application  of  tlie  max- 
im from  cases  where  the  party  has  implud 
or  constructive  notice  of  title  from  the  rec- 


TITLE  BY  ESTOrPEL. 


279 


ord,  would  confine  its  application  to  a  very 
narrow  field.  Absence  of  notice,  both  act- 
ual and  constructive,  of  the  adverse  title, 
w(Mild,  in  many  cases,  give  tlie  party  the 
benefit  of  the  plea  of  bo7ia  fide  purchaser 
without  notice,  and  dispt^nse  with  the  neces- 
sity of  setting  up  estoppel  in  pais.  Chan- 
cellor Zabui.skie  in  Deilett  v.  Kemble,  28  X. 
J.  Eq.  58,  held  a  party  entitcd  to  equitable 
aid  against  a  judgment  creditor  of  his  gran- 
tor wlicre  the  judgment  creditor  had  stood  by, 
and,  without  notice,  permitted  the  former  to 
build  on  the  property  in  the  honest  belief 
that  it  was  free  from  incumbrance,  when  he 
could  have  discovered  the  judgment  by  a 
search.  In  Town  v.  Needham,  3  Paige,  545, 
the  title  of  Harvey,  one  of  the  defendants, 
to  an  undivided  one-fourth  of  the  premises 
at  the  death  of  his  grandmother,  clearly  ap- 
peared by  the  will  of  the  former  owner, 
which  was  a  part  of  complainant's  chain  of 
title;  but  lie  was  granted  relief  against  Har- 
vey, on  the  ground  that  he  bought  and  made 
improvements  in  the  honest  supposition  that 
the  other  tenants  in  common,  througli  whom 
he  derived  title,  liad  in  some  way  acquired 
and  were  the  owners  of  the  whole  title.  So 
in  Brown  v.  Bowen,  30  N.  Y.  620,  tiie  title, 
which  was  barred  by  estoppel,  was  found  on 
the  public  record.  In  Storrs  v.  Barker,  6 
Johns.  Ch.  166,  the  plaintiff  claimed  under 
the  devise  of  a  married  woman  to  her  hus- 
band, and  was  chargeable  with  the  knowledge 
that  it  was  void;  and  it  was  held  that  he  was 
justified  in  supposing  that  the  title  had  been 
validated  by  some  action  between  the  devisee 
and  the  heir  at  law,  and  the  heir  at  law,  hav- 
ing stood  by  and  encouraged  the  purcliase  by 
plaintiff  from  the  devisee,  was  held  estopped. 
In  Chapman  v.  Chapman,  59  Pa.  St.  214, 
where  the  plaintilf  held  under  a  long  lease, 
and  the  defendants  held  in  severalty  parcels 
of  the  whole  tract  under  subsequent  convey- 
ances from  the  same  original  ovvner,  and 
plaintiff  was  held  estopped  from  setting  up 
ills  lease  by  his  positive  encouragement  as  to 
defendant  Chapman,  and  by  his  mere  silence 
as  to  defendant  Gansamer,  I  infer  that  plain- 
tiff's lease  was  a  matter  of  record;  since,  if 
not  recorded,  defendants  could  have  pleaded 
that  they  were  bona  fide  purchasers  for  value 
without  notice,  and  need  not  have  relied  up- 
on the  estoppel. 

The  position  that,  in  general,  record  notice 
of  the  title  is  sufficient  to  defeat  the  estoppel, 
where  it  rests  on  mere  silence,  receives  qual- 
ified support  from  Prof.  Pomeroy  in  his  trea- 
tise on  i-.quity  Jurisprudence,  §  810;  and  also 
from  Mr.  Bigelow  in  his  last  edition  of  his 
treatise  on  Estoppel,  594.  I  have  examined 
the  cases  cited  by  these  authors  in  support  of 
the  text,  and  they  are  all  distinguishable  from 
the  case  in  hand.  They  each  lack  one  of  its 
important  features,  viz.,  that  the  person 
sought  to  be  estopped  by  his  silence  knew,  or 
had  reason  to  suppose,  tliat  the  person  ask- 
ing the  protection  of  the  estoppel  was  acting 
in  good  faith,  on  an  erroneous  supposition  as 
to  the  title.     In  Fisher  v.  Mossman,  11  Ohio 


St.  42,  the  contest  was  between  a  mortgagee 
and  the  j)uichaser  of  the  equity  of  redemp- 
ion  at  sheii.l's  sale  under  execution  against 
the  owner  of  the  equity.  The  mortgagee  was 
present  at  the  sheriff's  sale,  and  did  not  give 
notice  of  his  mortgage,  which  was  recorded, 
and  it  was  held  that  he  was  not  estopped  by 
his  silence,  in  the  absence  of  any  notice  or 
reason  to  suppose  that  the  purchaser  was  ig- 
norant of  the  existence  of  his  mortgage.  In 
Knouff  V.  Thompson,  IG  Pa.  St.  357,  it  a[)- 
peared  allirmatively  that  the  defendant  knew 
of  plaintiff's  claim,  and  that  his  own  ti;le 
was  defective,  and,  moreover,  the  impro.e- 
ments  made  were  of  very  slight  value.  In 
Hill  V.  Epley,  31  Pa.  St.  331,  the  cont-st  was 
between  one  tenant  in  common  and  the  |uir- 
chaser  at  sheriff's  sale  of  the  interest  of  the 
other  tenant  in  common,  und^r  judgment 
and  execution  against  him.  The  nuittr  re- 
lied upon  in  estoppel  by  the  purchaser  at 
sheriff's  sale  was  that  the  grantor  of  the  par- 
ty now  claiming  against  him  had  been  pres- 
ent at  the  sheriff's  sale,  and  had  failed  to  give 
notice  of  his  title.  When  the  case  was  first 
before  the  court,  in  7  Watts,  163,  the  opinion 
and  decision  was  favorable  to  the  purciiaser 
at  sheriff's  sale,  and  tiie  remarks  of  the  court 
and  citation  of  authorities  found  on  page  168 
in  support  of  the  estoppel  are  valuable.  On 
a  retrial  a  verdict  was  rendered  in  accordance 
with  this  opinion  in  favor  of  the  purchaser  at 
sheriff's  sale,  and  against  the  owner  of  the 
outstanding  half  interest,  and  judgment 
thereon  was  reversed  by  the  court  in  banc, 
in  an  oi)inion  by  Strong,  J.  On  page  334, 
31  Pa.  St.,  he  says:  "It  seems  also  to  be  well 
settled  that  silence  in  some  cases  will  estop  a 
party  against  speaking  afterwards.  Thus,  if 
one  suffers  another  to  purchase  and  expend 
money  upon  a  tract  of  land,  and  knows  that 
that  otiier  has  a  mistaken  opinion  respecting 
the  title  to  it,  and  does  not  make  known  liis 
claim,  he  shall  not  afterwards  be  permitted 
to  set  up  a  claim  to  that  land  against  the 
purchaser.  His  silence  then  becomes  a  fraud. 
But  silence,  without  such  knowledge,  works 
no  estoppel.  It  is  only  when  silence  becomes 
afraud  thatit  postpones."  And  again,  (page 
335:)  "Clearly,  if  David  Witherow  [the  plain- 
tiff's grantor  and  one  of  the  tenants  in  com- 
mon] had  not  attended  the  sheriff's  sale, 
nothing  would  have  been  required  of  him. 
after  he  had  his  deed  upon  record.  This  is 
conceded.  But,  if  it  be  admitted  that  his 
presence  at  the  sale  imi)osed  upon  him  the 
duty  of  giving  otlier  notice  than  that  which 
his  recorded  deeil  furnished,  and  which  was 
consequently  known  to  Epley,  it  must  be  be- 
cause he  saw  that  the  purchaser  was  still 
acting  under  an  erroneous  belief  that  the 
whole  title  was  somehow  in  Samuel,  [the 
other  tenant  in  common,  and  defendant  in 
the  execution.]  Xotiiing  else  could  make 
his  silence  work  a  fraud.  But  how  could  he 
see  that?  And  how  is  such  knowledge  af- 
firmatively brought  home  to  him?  There  is 
no  evidence  of  any  such  erroneous  belief. 
The  laud  was  being  sold  as  the  property  of 


280 


TITLE. 


Samuel  Wiiherow,  it  is  true.  }3ut  Samuel 
had  an  interest  in  the  land.  Neitlier  tlie  ex- 
ecution nor  tlie  sheriff  nor  the  crier  asserted 
that  that  interest  amounted  to  the  entire fee- 
siuiple,  or  to  an  estate  in  severalty.  Tlie 
sheriff  had  no  right  to  define  what  the  inter- 
est was.  The  writ  was  just  such  a  one  as  it 
would  have  been  if  it  had  been  known  by 
every  person  present  at  the  sale  that  Samuel 
Witherow  owned  but  an  undivided  moiety. 
It  is  impossible  under  such  circumstances,  to 
see  how  David's  silence  could  be  construed 
into  an  admission  that  Samuel  owned  the 
whole,  because  there  was  no  assertion  by  the 
writ,  by  the  sheriff,  or  by  any  one  that  he 
did.  It  is  equally  impossible  to  discover  how 
David  could  have  supposed  that  Epiey  was 
bidding  under  an  impression,  for  there  was 
notliing  to  warrant  it,  and  a  deed  on  record 
showing  the  contrary,  of  the  contents  of 
which  not  only  the  law  presumed,  but  lie  had 
a  right  to  presume,  every  bidder  knew.  If 
the  sheriff  had  offered  for  sale  a  tract  of  land 
belonging  to  David  in  severally,  in  which 
Samuel  had  no  interest,  the  consequences  of 
silence  might  have  been  different." 

I  bflieve  this  to  be  a  correct  statement  of 
the  doctrine,  and  I  conceive  that  it  fully  dis- 
poses of  the  attempt  to  avoid  the  effect  of 
the  silence  in  this  case  by  an  apjieal  to  the 
record  title.  The  question  is  not  so  much 
what  the  party  setting  up  the  estoppel  might 
or  ought  to  have  known  or  supposed,  as  what 
he  actually  did  know  and  suppose,  to  the 
knowledge  of  the  other  party.  The  Xew 
York  case,  (Rubber  Co.  v.  Rothery,  107  N. 
Y.  310,  14  N.  E.  Rep.  269,)  much  relied  up- 
on by  defendant,  is  clearly  distinguishable. 
It  lacks  the  feature  of  the  one  party  acting 
on  the  mistaken  supposition  that  he  owned 
the  other  party's  land,  and  the  other  parly 
knowing  of  the  mistake.  The  case  was  this: 
Defendants  owned  both  sides  of  a  stream  at 
a  certain  point.  Further  down  they  owned 
but  one  side,  while  the  plaintiffs  owned  the 
other  side.  Defendants  built  a  dam  across 
the  stream  above  on  tiieir  own  land,  and  dug 
a  race-way  from  it  on  their  side  of  the  stream, 
and  built  works,  which,  when  put  in  use,  re- 
sulted in  diverting  the  whole  stream,  and 
carrying  it  down  past  the  plaintiff's  land,  be- 
fore it  was  returned  to  its  natural  channel. 
Plaintiff  saw  these  works  erected,  and  made 
no  objection.  Defendants  set  their  works 
in  motion,  and  diverted  more  than  half  the 
waters  of  the  stream,  and  for  that  diversion 
plaintiff  brought  suit.  Now,  as  defendants 
clearly  had  the  right  to  divert  one-half  the 
water  of  the  stream,  and  it  did  not  appear 
that  a  beneficial  use  of  the  works  could  not 
be  made  with  the  one-half,  or  that  plaintiff 
had  notice  of  anything  of  the  sort,  it  is  clear 
that  there  was  nothing  in  all  that  plaintiff 
saw  defendants  doing  to  lead  plaintiff  to  sup- 
pose either  tliat  defendants  supposed  that 
they  had  a  right  to  divert  all  the  water,  or 
that  they  intended  bo  do  so,  or  must  neces- 
sarily do  so  in  order  to  enjoy  their  works  to 
their  full  extent;  and  besides,  it  does  not  ap- 


pear that  the  defendants  supposed  that  they 
had  a  right  to  divert  all  the  water,  or  that, 
as  before  remarked,  the  plaintiff  knew  or 
supposed  that  the  defendants  •WTt  acting  on 
that  supposition.  The  case  is  somewhat  in 
line  with  Cooper  v.  Carlisle,  17  X.  J.  Eq.  .525, 
at  page  535.  In  Kirchner  v.  Miller,  39  X.  J. 
Eq.  355,  the  complainant  made  a  mistake  of 
a  few  inches  in  surveying  the  line  between 
his  land  and  the  defendant's,  for  which  mis- 
take the  defendant  was  not  responsible,  and 
of  which  he  was  not  aware  until  after  com- 
plainant had  built.  The  defendant  could  not 
be  guilty  of  any  acquiescence  unless  he  knew" 
that  the  complainant  was  building  over  on 
his  land,  which  he  did  not.  The  case  lacks 
the  features  mentioned  by  Lord  Cranworth. 
Moreover,  the  complainant  was  able  to  re- 
store himself  at  a  trifling  expense,  as  shown 
by  the  opinion.  Brant  v.  Coal  Co.,  93  U. 
S.  326,  is  also  clearly  distinguishable.  There 
a  party,  who  held  a  life-estate  only,  conveyed 
and  took  back  a  purchase-money  mortgage 
which  was  assigned  to  the  owner  of  the  tee 
in  remainder,  who  foreclosed.  The  deed  of 
assignment  recited  the  title  truly.  Defend- 
ant's grantor  purchased  at  the  foreclosure 
sale.  Plaintiff  was  the  owner  of  the  remain- 
der, and  at  the  death  of  the  life-tenant  brought 
suit  in  equity  to  restrain  mining,  etc.  De- 
fendant set  up  estoppel  arising  out  of  the 
foreclosure,  and  the  court  below  dismissed 
the  bill  on  that  ground.  This  decree  was  re- 
versed on  appeal,  by  a  divided  court.  Jus- 
tice Field,  at  page  335,  says:  "The  pur- 
chaser was  bound  to  take  notice  of  the  title. 
He  was  directed  to  its  source  by  the  plead- 
ings in  the  case.  The  doctrine  of  caveat 
emx>tor  applies  to  all  judicial  sales  of  this 
character;  the  purchaser  takes  only  the  title 
which  the  mortgagor  possessed.  And  here, 
as  a  matter  of  fact,  he  knew  that  he  w^as  ob- 
taining only  a  life-estate  by  his  purchase. 
He  so  stated  at  the  sale,  and  frequently  aft- 
erwards. There  is  no  evidence  that  either 
the  complainant  or  Hector  Sinclair  ever  made 
any  representations  to  the  defendant  corpora- 
tion to  induce  it  to  buy  the  property  from 
the  purchaser  at  the  sale,  or  that  they  made 
any  representations  to  any  one  respecting  the 
title  inconsistent  with  the  fact;  but,  on  the 
contrary,  it  is  abundantly  established  by  the 
evidence  in  the  recoi'd  that  from  the  time 
they  took  from  the  widow  the  assignment  of 
the  bond  and  mortgage  of  the  Union  Potomac 
Company,  in  1854,  they  always  claimed  to 
own  seven-eighths  of  the  reversion.  The 
assignment  itself  recited  that  the  widow  had 
owned,  and  had  sold  to  that  company,  a  life- 
interest  in  the  property,  and  that  they  had 
acquired  the  interest  of  the  heirs."  Brewer 
V.  Railroad  Co.,  5  Mete.  478,  was  an  action 
of  ejectment,  where  the  party  was  precluded 
from  setting  up  equitable  estoppel.  In  Bald- 
win V.  Kichman,  9  X.  J.  Eq.  394,  Baldwin 
claimed  title  by  conveyance  from  Benjamin 
liichman,  and  was  defeated  in  an  action  of 
ejectment  by  the  heirs  of  Jeremiah,  brother 
of  Benjamin.     Jeremiah  being  the  sole  owner 


TITLE  BY  ESTOPPEL. 


281 


■of  tlie  fee  of  the  land  in  question  and  other  \ 
lands,  but  supposing  that  lie  owned  thein  as 
tenant  in  common  with  his  brother  lienja- 
uiin,  applied  to  the  orphans'  court  for  and 
procured  partition,  in  wli'-h  the  lot  in  con- 
troversy was  set  off  to  Benjamin,  who  en- 
tered, and,  after  the  mistake  was  discovered, 
-conveyed  to  Kichnian,  who  purcliased  with 
full  notice  of  the  true  state  of  the  title.  The 
bill  prayed  relief  against  the  ejectment. 
Chancellor  Williamson  dismissed  it  on  two 
grounds:  First,  (page  398,)  tliat  the  bill 
"does  not  allege  that  13enjamin  took  posses- 
'sionofthe  land  and  improved  it  under  the 
impression  tliat  tlie  land  was  his  own,  nor  is 
there  any  alle.;ation  that  it  was  the  conduct 
of  Jeremiah  tliat  induced  liim  to  take  posses- 
sion and  make  the  improvements.  From 
anything  that  appears  in  the  bill  to  the  con- 
trary, he  knew  tliat  Jeremiah  was  acting  un- 
der a  mistake,  and  took  advantage  of  it." 
Second,  (page  399,)  tliat  there  was  an  allega- 
tion in  the  bill,  but  no  admission  or  proof, 
tl;<it  Benjamin  had  made  improvements  or 
expended  moneys  on  the  land,  hence  no  in- 
jury was  shown.  The  case  is  in  all  its  as- 
pects clearly  distinguishable  from  tlie  one  in 
iiand.  From  tlie  numerous  modern  cases  in 
other  jurisdictions,  in  which  the  maxim  has 
been  applieil,  I  cite  tlie  following,  which  seem 
to  have  been  well  considered:  Canal  Co.  v. 
King,  16  Beav.  630,  22  Law  J.  ch.  604; 
Slocumb  v.  Kailroad  Co.,  57  Iowa,  675,  at 
page  682,  II  N.  W.  Rep.  641,  644;  Ross  v. 
Thompson,  78  Ind.  90,  96;  Markhara  v. 
O'Connor,  52  Ga.  198;  Ciiapman  v.  Pingree, 
67  Me.  198;  Stone  v.  Tyree,  30  W.  Ya.  687, 
5  S.  E.  Rep.  878;  Allen  v.  Shaw,  61  X.  11. 
95;  Morgan  v.  Railroad  Co.,  96  U.  S.  716. 

In  the  case  in  hand  I  find  it  impossible  to 
suppose  that  defendant  did  not  understand 
that  the  complainant  was  making  her  im- 
provements in  the  complete  confidence  that 
she  had  title  to  the  whole  of  the  lot.  It 
would  have  been  an  act  of  the  greatest  folly, 
if  not  outright  insanity,  in  her,  to  have  made 
the  improvements  if  she  had  supposed  any 
other  person  owned  the  strip  in  question. 
The  transaction  spoke  for  itself;  and,  as  be- 
fore remarked,  there  was  no  pretense  at  the 
hearing  that  defendant  did  not  so  under- 
stand. He  does  indeed  swear  that  he  thought 
"these  parties"  were  better  prepared  to 
know  how  much  land  he  had  there  than  he 
was.  But  the  context  shows  that  he  re- 
ferred merely  to  the  quantity  of  his  land  cut 
off  by  the  change  of  street  lines,  and  not  to 
the  state  of  the  minds  of  the  "parties"  allud- 
ed to,  as  to  their  right  to  use  and  occupy  it  as 
their  own.  He  did  not  swear  that  he  did  not 
suppose  that  Mrs.  Sumner  made  her  improve- 
ments in  the  honest  belief  that  she  had  full 
right  to  the  perpetual  use  and  occupation  of 
the  strip  in  controversy.  With  regard  to 
the  knowledge  by  the  defendant  that  a  part 
of  the  land  in  the  old  street  to  which  he  had 
the  legal  title  lay  to  the  south  of  the  souther- 
ly line  of  the  new  street,  I  find  no  difficulty. 
An  inspection   of   the   map   shows   that   be 


must  have  known  it,  and,  besides,  he  not 
only  does  not  deny  it  on  the  stand,  but  dis- 
tinctly admits  it.  He  swears  that  lie  did  not 
know  how  much  he  had.  In  fact,  defendant's 
counsel  admitted  in  his  brief  that  his  client 
knew  that  he  owned  some  land  at  the  point 
in  question,  but  did  not  know  the  quantity. 
But  defendant's  counsel  further  insists  that 
no  equitable  estoppel  arises  in  this  case,  be- 
cause the  dwelling  erected  by  complainant 
was  on  her  own  land,  and  tiie  actual  im- 
provements put  on  the  land  in  dispute  were 
so  trifling  in  amount  and  cost  as  not  to  create 
a  duty  on  his  part  to  speak.  1  cannot  accede 
to  the  proposition  necessarily  assumed  in  this 
position,  viz.,  that  it  is  necessary  that  there 
should  be  an  actual  use  or  occupation  of  the 
very  land  in  question  by  some  fixed  and  per- 
manent structure  in  order  to  raise  an  estop- 
pel. The  true  ground  of  equitable  estoppel 
I  conceive  to  be  that  the  party,  in  reliance 
upon  the  existence  of  a  certain  state  of  facts, 
has  so  changed  his  position  that  he  cannot  be 
restored  to  his  former  position,  and  will  suf- 
fer serious  loss  if  the  facts  prove  to  be  differ- 
ent from  what  he  supposed  them  to  be;  and 
the  estoppel  arises  against  the  party  wiio  is 
responsible  for  his  action  on  such  mistaken 
belief,  and  it  operates  to  prevent  him  from  as- 
serting the  contrary  Now,  it  is  palpable 
that  actual  occupation  by  building  on  land  is 
not  the  only  use  a  party  may  make  of  it,  the 
deprivation  of  which  would  result  in  serious 
injury  to  him.  For  instance,  suppose  in  this 
case  complainant's  lot  had  been  but  100  feet 
deep  and  25  feet  wide, and  defendant's  legal  ti- 
tle had  extended  across  the  whole  front,  and  to 
a  depth  of  10  feet,  and  complainant  iiad 
built  upon  the  whole  lot,  except  the  10  feet 
owned  by  defendant,  leaving  that  as  a  front 
yard  to  his  buildings.  It  is  at  once  apparent 
that  the  assertion  of  title  by  the  defendant  to 
the  10  feet  would  have  been  utterly  destruc- 
tive of  the  value  of  complainant's  structure. 
Now,  the  difference  between  the  case  just 
supposed  and  the  one  in  hand  is  one  of  de- 
gree merely. 

Counsel  in  this  connection  further  relies 
on  the  fact  that  tiie  strip  claimed  by  defend- 
ant does  not  reach  across  the  whole  front  of 
complainant's  lot,  but  leaves  a  space  of 
about  30  feet  next  to  Mrs.  Smith's  line  by 
which  complainant  can  have  access  to  the 
street.  But  that  space  is  covered  by  the 
Wetmore  title,  and  it  was  admitted  at  the 
hearing  that  it  had  not  been  transferred  to 
Mrs.  Smith  or  to  the  complainant,  unless 
such  transfer  resulted  in  equity  from  the 
proceedings  before  referred  to.  So  that,  if 
the  Wetmore  title  is  enforceable  as  well  as 
defendant's,  complainant  is  shut  up  to  a 
mere  right  of  way  by  necessity  across  her 
mother's  lot.  But  admitting  that  complain- 
ant has,  after  deducting  the  lot  claimed  by 
defendant,  a  frontage  on  the  street  of  30  feet, 
or  one-lifth  of  the  width  of  her  lot,  it  is  pal- 
pable that  the  utility  as  well  as  the  market 
value  of  her  property  will  be  very  injuriously 
affectc  d  if  defendant  may  take  exclusive  ])03- 


28^ 


[TLE. 


session  of  the  piece  in  dispute;  and  it  is 
equally  clear,  as  before  remarked,  that  de- 
fendant must  have  perceived  and  known 
that  complainant  was  acting  on  the  assump- 
tion tiiat  she  owned  this  piece,  and  that  slie 
would  not  liave  built  her  house  if  she  had 
not  so  supposed.  If  ever  there  was  a  case  in 
which  the  duty  of  the  party  to  speak  was 
clear,  it  seems  to  me  it  was  this  case,  and 
that  the  language  of  Lord  Ckanavorth  in 
Ramsden  v.  Dyson,  supra,  applies:  "A 
court  of  equity  considers  Ihat,  when  the  one 
party  saw  the  mistake  into  which  the  other 
party  had  fallen,  it  was  his  duty  to  be  active 
and  slate  his  adverse  title;  and  that  it  would 
be  dishonest  for  him  to  remain  willfully  pas- 
sive on  such  an  occasion  in  order  afterwards 
to  profit  by  the  mistake  which  he  might 
have  prevented."  For  these  reasons,  I  think 
the  complainant  is  entitled  to  relief,  and  it 
only  remains  to  determine  its  nature  and  ex- 
tent. 

Courts  of  equity  do  not,  in  all  cases  of  this 


sort,  push  the  estoppel  to  the  extent  of  pass- 
ing the  equitable  title,  but  in  proper  cases 
permit  the  owner  of  the  legal  title  to  hold 
possession  upon  terms  of  compensating  the 
party  who  has  innocently  made  improve- 
ments upon  the  erroneous  supposition;  in- 
demnity to  the  party  entitled  to  the  estoppel 
being  in  all  cases  the  end  aimed  at.  It  was 
not,  however,  suggested  at  the  argument  or 
in  the  briefs  of  counsel  that  remedy  by  com- 
pensation in  money  would  be  proper  in  this 
case;  and  it  is  palpable  that  it  could  not. 
The  value  of  the  strip  in  question  for  use  by 
itself  must  be  quite  insignificant,  and  the  in- 
jury to  complainant  by  reason  of  its  exclusive 
occupation  by  another  is  not  easily  ascer- 
tained or  measured  in  dollars  and  cents.  The 
only  mode  in  which  complainant  can  be  fully 
indemnified  is  to  be  protected  in  the  perpetual 
enjoyment  of  the  land  in  question,  and  for 
that  purpose  the  defendant  should  be  per- 
petually enjoined  from  asserting  his  legal 
title,  and  such  will  be  the  decree. 


TITLE  BY  ADVERSE  POSSESSION. 


28B 


SHERIN  et  al.  v.  BRACKETT. 
(30  N.  W.  551,  36  Minn.  152.) 
Supreme  Court  of  Minnesota.    Dec.  8,  1880. 
Appeal  from  district  court,  Hennepin  county. 

Smith  &  Reed,  for  appellanls,  Sberin  and  oth- 
ers, by  their  guardian  ad  litem.  Fish,  Evans 
&  Holmes,  for  respondent,  Braekett. 

BERRY,  J.  This  is  an  action  in  the  nature 
of  ejectment,  in  which  the  plaintiffs,  seeking 
to  recover  possession  of  a  strip  of  land,  alleged 
that  on  October  1,  1885,  and  long  before,  they 
were  and  now  are  owners  thereof;  and  fur- 
ther that  they  and  their  ancestors,  from  whom 
they  derive  title,  have  been  in  the  actual,  peace- 
able, open,  notorious,  adverse,  and  continuous  j 
possession  thereof  for  more  than  25  years  prior 
and  up  to  October  8,  1885;  that  on  that  day, 
while  they  were  in  such  actual  possession,  de- 
fendant unlawfully  entered  upon  said  strip  of 
land  and  wrongfully  ejected  them  therefrom, 
and  ever  since  wrongfully  detains  possession 
thereof. 

Doubtless  the  intent  of  the  pleader  was  to  set 
up  title  in  fee  based  upon  what  is  called  ad- 
verse possession.  But  as  the  greater  includes 
the  less,  the  complaint  sufficiently  pleaded  ac- 
tual possession  at  the  time  of  the  defendant's 
alleged  entry,  so  that  if  upon  the  trial  the  plain- 
tiffs failed  to  make  out  adverse  possession,  such 
as  would  give  them  title  as  against  the  holder 
of  the  paper  title,  still,  if  they  proved  actual 
possession,  they  might  properlj'  insist  that  they 
were  within  the  allegations  of  their  complaint, 
and  had  made  out  a  case  as  against  a  mere 
trespasser.  For  as  against  one  showing  no  ti- 
tle in  himself,  possession  is  title.  Wilder  v. 
City  of  St.  Paul,  12  Minn.  192  (Gil.  116);  Rau 
V.  Railroad  Co.,  13  Minn.  442  (Gil.  407);  Sedg. 
&  W.  Tr.  Title  Land,  §§  717,  718. 

The  evidence  upon  the  trial  below  in  the  case 
at  bar  showed  that  plaintiffs  were  in  posses- 
sion of  the  strip  of  land  in  controversy  at  the 
time  of  defendant's  entry  upon  it,  and  defend- 
ant gave  no  evidence  of  any  right  or  title  in 
himself.  In  this  state  of  the  evidence  the 
plaintiffs  were  entitled  to  judgment,  and  hence 
the  trial  court  erred  in  dismissing  the  action  at 
the  close  of  plaintiff's  testimony.  As  this  point 
is  insisted  upon  by  plaintiff  it  cannot  be  disre- 
garded, and  so  there  must  be  a  new  trial. 

This  disposes  of  the  present  appeal,  but  (as 
we  surmise)  not  of  the  real  merits  of  the  con- 
troversy, and  therefore,  with  reference  to  a 
new  trial,  we  deem  it  expedient  to  determine 
certain  other  questions  raised  upon  the  argu- 
ment. 


And,  first,  though  there  are  a  few  cases  which 
hold  that  the  statutory  period  of  adverse  pos- 
session, which  will  bar  an  action  for  the  re- 
covery of  land,  may  be  made  up  by  tacking 
together  the  periods  of  the  adverse  possession 
of  several  successive  holders  between  whom 
there  is  no  privity  (see  Scales  v.  Cockrill,  3 
Head,  4.33;  Smith  v.  Chapin,  31  Conn.  530; 
Davis  V.  McArthur,  78  N.  C.  357),  the  rule  laid 
down  by  the  great  majority  of  courts  and  by 
the  text  writers,  and  supported  by  the  weight 
of  authority,  and  which  must  be  regarded  as 
the  true  rule,  is  that  privity  between  successive 
adverse  holders  is  indispensable.  And  this,  up- 
on the  principle  that  unless  the  successive  ad- 
verse possessions  are  connected  by  privity  the 
disseizin  of  the  real  owner  resulting  from  the 
adverse  possession  is  interrupted,  and  during 
the  interruption,  though  but  for  a  moment,  the 
title  of  the  real  owner  draws  to  it  the  seizin  or 
possession.  Melvin  v.  Proprietors,  etc.,  5  Mete. 
(Mass.)  15;  Haynes  v.  Boaroman,  119  Mass. 
415;  McEntire  v.  Brown,  28  Ind.  347;  Jackson 
V.  Leonard,  9  Cow.  653;  Wood,  Lim.  §  271; 
San  Francisco  v.  Fulde,  37  Cal.  349;  Crispen 
V.  Hannavan,  50  Mo.  530;  Shuflaeton  v.  Nelson, 
2  Sawy.  540,  Fed.  Cas.  No.  12,822;  Ang.  Lim. 
§§  413,  414;  Sedg.  &  W.  Tr.  Title  Land,  §§ 
740,  7i.j-747;    Riggs  v.  Fuller,  54  Ala.  141. 

Second.  The  privity  spoken  of  exists  between 
two  successive  holders  when  the  later  takes 
under  the  earlier,  as  by  descent  (for  instance, 
a  widow  under  her  husband,  or  a  child  under 
its  parent),  or  by  will  or  grant,  or  by  a  volun- 
tary transfer  of  possession.  Leonard  v.  Leon- 
ard, 7  Allen,  277;  Hamilton  v.  Wright,  30 
Iowa,  480;  Jackson  v.  Moore,  13  Johns.  513; 
McEntire  v.  Brown,  supra;  Weber  v.  Ander- 
son, 73  111.  439;  Wood,  Lim.  §  271;  Sedg.  & 
W.  Tr.  Title  Land,  §§  747,  748. 

Third.  While  to  operate  as  a  bar  adverse  pos- 
session must  be  continuous,  continuity  will  not 
be  interrupted  by  the  possession  during  any 
part  of  its  period  of  one  who  occupies  the  prem- 
ises as  a  tenant  of  the  alleged  adverse  posses- 
sor. In  such  cases  the  tenant's  possession  is 
that  of  his  landlord.  San  Francisco  v.  Fulde, 
supra;  Rayner  v.  Lee,  20  Mich.  384;  Sedg.  & 
W.  Tr.  Title  Land,  §  747. 

Fourth.  Possession,  to  be  adverse,  so  as  to 
bar  an  owner's  right  of  action,  must  be  actual, 
open,  continuous,  hostile,  exclusive,  and  accom- 
panied by  an  intention  to  claim  adversely. 
Sedg.  &  W.  Tr.  Title  Land,  §  731  et  seq. 

This  is  all  which  we  deem  it  necessary  to  say 
in  this  case;  for,  as  there  is  to  be  a  new  trial, 
we  forbear  to  comment  upon  the  evidence. 

Order  denying  now  trial  reversed,  and  new 
trial  awarded. 


28i 


TITLE. 


DEAN  V,  GODDA.RD. 

(56  N.  W,  1060,  55  Minn.  290.) 

Supreme  Court  of  Minnesota.     Nov.   17,   1893. 

Appeal  from  district  court,  Hennepin  coun- 
ty;   Canty,  Judge. 

Action  by  Alfred  J.  Dean  against  Fred  H. 
Goddard  to  quiet  title  to  realty.  Plaintiff 
had  judgment,  and,  from  an  order  denying 
a  new  trial,  defendant  appeals.    Affirmed. 

C.  J.  Cahaley  and  Little  &  Nunn,  for  appel- 
lant.   Woods  &  Kingman,  for  respondent. 

BUCK,  J.  The  question  raised  in  this  case 
l3  whether  the  plaintiff  has  acquired  title 
by  adverse  possession  to  the  premises  de- 
scribed in  the  complaint,  viz.  the  front  half 
of  lots  1  and  2  in  block  G7,  in  the  city  of 
Minneapolis.  The  action  was  commenced  in 
August,  1891.  In  his  complaint  the  plaintiff 
alleges  that  he  is  in  possession,  and  is  the 
owner  in  fee  simple,  of  the  premises  above 
described,  and  that  the  defendants  claim 
some  estate  or  interest  in  the  premises  ad- 
verse to  the  plaintiff,  and  prays  that  the 
claims  of  the  respective  parties  be  adjudged 
and  determined,  and  that  title  to  said  prem- 
ises be  decreed  to  be  in  the  plaintiff.  The  de- 
fendant Goddard  answered,  and  alleged  the 
title  in  fee  to  be  in  himself.  The  plaintiff  re- 
plied, and  such  reply  will  be  referred  to 
hereafter.  Plaintiff's  contention  is  that  he 
acquired  title  by  possession  held  adversely 
for  such  a  length  of  time  as  to  create  a 
title  in  himself. 

Under  Gen.  St.  1878,  c.  66,  §  4,  the  time  lim- 
ited for  commencing  actions  for  the  recov- 
ery of  real  property  wns  fixod  at  20  years; 
but  on  April  24,  1889,  the  law  was  changed 
to  15  years, — not  to  take  effect,  however,  un- 
til January  1,  1891.  The  law,  as  amended, 
would  be  applicable  to  actions  commenced 
after  January  1,  1891,  and  prior  to  the  time 
of  the  commencement  of  this  action,  in  Au- 
gust, 1891;  but  this  would  not  render  the 
law  existing  prior  to  the  amendment  inappli- 
cable to  causes  of  action,  when  there  was 
20  years'  adverse  possession  before  the  tim.e 
when  the  cliange  took  effect.  The  period, 
however,  relied  upon,  need  not  be  the  20 
years  immediately  preceding  the  1st  day  of 
January,  1891.  It  would  be  sufficient  if  the 
possession  relied  upon  was  continuous  for 
20  years  up  to  any  cei'tain  or  definite  time. 
Of  course,  the  20  years  would  have  to  be 
complete  before  the  briuying  of  the  action; 
but  such  20  years  need  not,  necessarily,  be 
those  next  before  the  time  when  the  action 
is  commenced.  In  this  case,  if  the  inception 
of  the  plaintiff's  adverse  possession  was  in 
the  months  of  June  or  August,  1866,  and  be- 
came perfect  by  continued  adverse  posses- 
sion until  the  month  of  June  or  August,  1886, 
then  the  title  thereby  created  would  not  be 
lost  or  forfeited  by  any  subsequent  internip- 
tion  of  the  possession,  imless  by  some  other 


adverse  possession  for  such  a  length  of  time 
as  would  create  title  in  the  possessor. 

The  court  below  found  the  allegations  in 
the  plaintiff's  complaint  to  be  time,  and  that 
he  was,  at  the  time  of  the  commencement 
of  this  action,  the  sole  owner,  in  fee,  and  in 
the  lawful  possession,  of  the  premises  de- 
scribed in  the  complaint,  and  that  he  and  his 
grantors  and  predecessors  in  interest  had 
been  in  the  open,  continuous,  exclusive,  and 
adverse  possession  of  the  premises,  with  col- 
or of  title,  and  paying  taxes  thereon,  for  a 
period  of  20  years,  and  that  he  was  entitled 
to  the  decree  and  judgment  of  the  court  de- 
claring him  to  be  the  absolute  owner  of  the 
premises.  We  think  a  title  acquired  by  ad- 
verse possession  is  a  title  in  fee  simple,  and 
is  as  perfect  as  a  title  by  deed.  The  legal 
effect  not  only  bars  the  remedy  of  the  own- 
er of  the  paper  title,  but  divests  his  estate, 
and  vests  it  in  the  party  holding  adversely 
for  the  required  peiiod  of  time,  and  is  conclu- 
sive evidence  of  such  title.  To  say  that  the 
statutes  upon  this  subject  only  bar  the  rem- 
edy, as  some  authorities  do,  is  only  to  leave 
the  fee  in  the  owner  of  the  paper  title; 
thus  leaving  the  owner  with  a  title,  but 
without  a  remedy.  We  think  the  better  and 
more  logical  rule  is  to  hold  tliat  the  occu- 
pier of  the  premises  by  adverse  possession 
acquires  title  by  that  possession,  predicated 
upon  the  presumption  or  proven  fact  that  the 
prior  owner  has  abandoned  the  premises. 
Adverse  possession  ripens  into  a  perfect  ti- 
tle. This  title  the  adverse  possessor  can 
transfer  by  conveyance,  and  when  he  does 
so  he  is  conveying  his  o'ttTi  title,  and  not  a 
piece  of  land  where  the  title  is  in  some  other 
person,  who  is  simply  barred  of  any  remedy 
from  recovering  it.  See  Campbell  v.  Holt, 
115  U.  S.  620,  6  Sup.  Ct.  Rep.  209;  Baker  v. 
Oakwood,  123  N.  Y.  16,  25  N.  E.  Rep.  312, 
and  cases  thei'e  cited.  Now,  if  there  is  any 
cloud  resting  upon  such  title,  he  has  a  legal 
riglit  to  apply  to  the  court,  and  have  his 
rights  adjudicated,  and  the  title  perfected  by 
judgment  record,  if  the  evidence  sustains 
his  claim.  Considerations  of  public  policy 
demand  that  this  should  be  so,  for  the  claim 
of  title  to  lands  can  thus  be  foimd  of  record, 
instead  of  resting  in  parol,  with  all  of  its  in- 
cidental dangers  and  trouble  in  estabUshlng 
titie. 

Now,  let  us  consider  the  question  raised 
by  the  defendant,  as  to  whether  one  of  the 
plaintiff's  predecessors,  Washbm'n,  entered 
into  the  adverse  possession  of  the  premises 
June  1,  1866,  or  August  28,  1866.  The  plain- 
tiff claims  such  entry  was  on  the  1st  day  of 
June,  and  the  defendant  insists  that  the  ti'ue 
date,  if  there  was  any  such  adverse  entry  at 
all,  is  shown  by  plaintiff  himself,  in  his  re- 
ply, to  be  August  28,  1866.  The  importance 
of  those  dates  arises  from  the  fact  that  there 
is  evidence  tending  to  show  an  adverse  pos- 
session of  the  premises  by  the  predecessors 
of  plaintiff  until  the  middle  of  July,  1886; 


TITLE  BY  ADVEhSE  POSSESSION. 


285 


and  if  the  period  of  20  years  commoucod  June 
1,  3800,  of  course,  the  expiration  of  that  pe- 
riod would  be  June  1,  18S(i,  and  if  tlie  period 
commenced  August  28,  18GG,  the  20-j'ear  pe- 
riod would  expire  Aujfust  28,  188G.  Thus, 
the  true  date  becomes  material.  Tlie  plain- 
tiff, in  his  amended  repljs  inserted  the  fol- 
loAvinj?  allegation,  viz.:  "That  on  or  about 
the  1st  day  of  June,  1866,  and  more  than  fif- 
teen j-oars  prior  to  the  commencement  of 
this  action,  said  William  D.  Washburn,  under 
the  deed  hereinbefore  recited,  executed  to 
him  by  said  Lindley,  and  claiming  thereby 
to  be  the  owner  of  said  premises,  entered  in- 
to possession  and  actual  occupation  of  the 
same."  The  deed  referred  to  bears  date  Au- 
frust  28,  1SG6.  It  may  be  that  there  is  suffi- 
cient undisputed  evidence  to  show  an  ad- 
veiise  possession  during  this  particular  time, 
but  we  think  that,  imder  the  circumstances, 
the  parties  are  entitled  to  the  opinion  of 
this  court  upon  this  phase  of  the  case.  The 
fault  of  the  defendant's  position  is  this:  That 
he  allowed  the  plaintilf  to  introduce  and 
prove  beyond  dispute,  by  parol  evidence, 
without  objection,  that  Washbm-n  entered 
upon  these  premises  June  1,  1866.  The  rule, 
therefore,  that  the  written  allegations  of  the 
pleadings  should  control,  does  not  apply.  The 
defendant  did  not  move  to  have  the  plead- 
ings made  certain  and  definite,  nor  to  com- 
pel the  plaintiff  to  elect  upon  which  of  the 
dates  he  would  rely  as  the  time  of  Wash- 
burn's entry  upon  the  premises,  but  remained 
silent,  and  allowed  the  date  of  June  1, 
1866,  to  be  undispiitably  proven  by  the 
plaintiff.  The  allegations  in  the  reply 
were  repugnant  as  to  the  dates  of  Wash- 
burn's entry,  but  the  defendant,  by  his 
conduct,  Avaived  his  right  to  insist  now  that 
the  date  of  such  entry  should  be  determined 
as  of  AugiLst  28,  1866.  He  is  estopped  by  the 
admitted  parol  evidence  from  insisting  tliat 
the  written  pleadings  should  be  construed  in 
his  favor,  and  against  the  plaintiff. 

There  is  no  dispute,  however,  that  Wash- 
burn did  procm-e  a  deed  of  the  premises 
from  Lindley  dated  August  28,  1866;  and 
the  defendant  therefore  contends  that  Wash- 
bm-n's  entry,  if  adverse  at  all,  should  only 
be  considered  as  having  commenced  on  the 
date  of  the  deed.  To  support  this  conten- 
tion, he  invokes  the  doctrine  that  one  who 
enters  upon  land  under  a  mere  agreement  to 
pui'chase  does  not  hold  adversely,  as  against 
his  vendor,  until  his  agreement  has  been  fully 
pei-formed,  so  that  he  has  become  entitled 
to  a  couveyance.  This  doctrine  is  not  appli- 
cable to  this  case.  Washburn's  entry  and 
holding  was  not  under  this  defendant,  nor 
any  of  his  predecessors  holding  paper  title. 
As  we  have  already  stated,  it  appears  that 
he  was  in  possession  on  the  1st  day  of  June, 
1866;  and  whether  by  permission  of  Lindley, 
or  by  his  own  voluntary  entry,  is  immaterial, 
us  to  his  rights  against  parties  other  than 
Lindley,  and  Lindley  is  not  complaining,  or 
questioning  his  rights,  or  time  of  entry.    Nor 


IS  defendant  claiming  title  under  Lindley.  If 
permissive  possession,  with  parol  executory 
conditions  attached,  would  not  constitute  ad- 
verse possession  as  betAveen  the  parties,  yet 
it  might  constitute  adverse  possession  as 
against  third  persons  or  strangers.  Wash- 
bm-u's  entry  wiis  adverse  as  against  those 
under  whom  defendant  claims  by  paper  title. 
If,  therefore,  Washbm-n's  entry,  of  June  1, 
1S66,  was  his  own  adverse  act,  and  he  so 
continued  in  possession  of  the  premises  until 
long  after  August  28,  1866.  there  is  no  need 
of  considering  the  doctrine  of  tacking,  or  the 
necessity  of  the  continuity  of  possession.  Ob- 
taining a  deed  to  the  premises  from  Lindley 
would  not  desti'oy  Washburn's  previous  ad- 
verse possession,  nor  break  its  continuity.  He 
had  a  right  to  strengthen  his  adverse  claim 
to  the  premises,  if  possible,  by  as  many  writ- 
ten conveyances  from  other  parties  claiming 
any  interest  therein  as  he  saw  fit,  and  thus 
give  him  .color  of  title,  and  perhaps  define 
the  boundaries  of  the  premises  claimed  by 
him. 

The  essential  ingredients  necessary  to  cre- 
ate title  by  adverse  possession  are  now  so 
well  defined  and  understood  that  we  shall 
not  enter  into  any  argument  or  discussion  to 
show  what  they  are.  We  merely  state  them 
:n  this  connection  that  we  may  the  more  con- 
veniently apply  them  to  the  undisputed  facts 
in  this  case.  "To  be  adverse,  possession  must 
l)e  actual,  open,  continuous,  hostile,  exclusive, 
and  accompanied  by  an  intention  to  claim  ad- 
versely." Sherin  v.  Brackett,  36  Minn.  152, 
50  N.  W.  Rep.  551.  This  leads  lis  to  the  ques- 
tion raised  by  defendant,— that  the  court  be- 
low did  not  find,  specifically,  that  plaintiff's 
poss3ssion,  or  the  possession  of  his  predeces- 
sors, was  hostile.  But  it  did  find  that  such 
possession  was  open,  continuous,  exclusive^ 
and  adverse  during  the  requisite  period.  The 
gi-eater  includes  the  less.  If  it  was  adverse, 
it  was  hostile.  In  Sedg.  &  W.  Tr.  Title  Land. 
§  749,  it  is  said  that  "it  is  tautology  to  say 
that  adverse  possession  must  be  'hostile.' " 
Such  hostility  may  be  manifested  by  acts  of 
possession  and  use  of  the  premises,  plainly 
visible,  actual,  open,  and  continuous,  such  as 
appeared  in  this  case,  by  vising  the  premises 
for  man5-  years  as  a  lumber  yard,  building  a 
barn  and  shed  thereon  in  1866  or  1867,  and 
keeping  the  same  on  the  premises  until 
they  burned  down,  in  March,  1SS4,  and 
keeping  a  large  number  of  horsi^  on  the 
premises  and  in  the  stables  for  many  years. 
Also,  storing  machinery,  lamp  posts,  castings. 
and  other  personal  property,  putting  a  large 
sign  on  the  lot,  with  notice  1  hereon  that  it 
was  for  rent,  for  a  long  term  of  years,  wei-e 
acts  of  hostility,  as  tending  to  show  very 
strongly  that  some  one  was  aissuming  do- 
minion over  the  premises,  and  had  intended 
to,  or  was  usurping  the  possession. 

If,  as  was  said  by  the  court  in  Stephens 
V.  Leach,  19  Pa.  St  263,  the  adverse  pos- 
sessor "must  keep  his  flag  flying,"  yet  it  is 
no    less    essential    that    the    actual    owner 


286 


TITLE. 


should  reasonably  keep  his  own  banner  un- 
furled.   The  law,  which  he  is  presumed  to 
know,   is  a  continual   warning  to  him   that 
if  he   shall   allow   his  lands   to   remain   un- 
occupied,  unused,   unimproved,   and  unculti- 
vated, by  adverse  possession  for  a  long  per- 
iod of  time,  fixed  by  law,  he  may  be  dis- 
seised thereof,   and  deemed   to  have  acqui- 
esced in  the  possession  of  his  adversary.    In 
tliis  case,  the  actual  owners  by  paper  title 
have  never  occupied  the  premises  since  the 
first  owner  obtained  his  title  from  the  gov- 
ernment, in  1855  or  1856.    Considerations  of 
public  policy  demand  that  our  lands  should 
not  remain  for  long  periods  of  time  unused, 
unimproved,      and     unproductive.         Taxes 
should   be   promptly   paid.    It   nowhere   ap- 
pears tliat  the  owners  by  paper  title  have 
ever  paid  any  taxes,  but  they  have  allowed 
the  adverse  occupants,   dmnng  a  period   of 
many  years,  to  pay  nearly  $5,000  taxes  upon 
the    premises.       Payment    of    taxes    shows 
c^laim   of   title.    Paine   v.   Hutchins,   49    Vt. 
314.     We  can  readily  understand  how  these 
statutes  are  caUed  "statutes  of  repose."    The 
bui-dens    of   government   must   be   met;    its 
educational  interests  provided  for;   its  judi- 
cial,    legislative,     and     executive     functions 
maintained;  and  to  do  this  our  real  property 
must  be  made  productive,  to  the  end,  among 
other  things,  that  taxes  may  be  raised  and 
paid  from  land  not  subject  to  continual  liti- 
gation, but  the  titles  thereto  quieted.    If  th'^ 
selfish,  the  indolent,  and  the  negligent  will 
not  do  tliis,  there  is  no  more  merit  in  their 
claim    than   that   of   the   adverse    possessor, 
who  does  so,  whatever  may  be  said  of  the 
harshness  of  the  statute  of  limitation.    The 
settlement  and  improvement  of  the  country, 
with    its    consequent    prosperity,    should    be 
superior  and   paramount  to   the  speculative 
rights  of  the  land  grabber,  or  selfish  greed 
of  those  who  seek  large  gains  through  the 
toil,    labor,    and    improvements     of     others. 
The  hostile  possession  of  the  adverse  claim- 
ants in  this  case  fuUy  appears.    The  posses- 
sion has  been  open,  visible,  hostile,  and  no- 
torious,  as   appears  from   the  evidence.    It 
has  been  exclusive,  for  no  one  else  has  made 
any  claim  to  it.    Those  who  have  been  on 
the  premises,  other  than  plaintiff  or  his  pred- 
ecessors, have  made  no  claim  of  right,  but 
have  paid  rent  to  the  adverse  claimant,   or 
were    there    simply    as    trespassers,    which 
would  not  break  the  cpntinuity  of  possess' on. 
The  intent  to   claim  may  be  inferred  from 
the  nature  of  the  occupancy.    Oral  declara- 
tions are  not  necessary.    Possessory  acts,  so 
as  to  constitute  adverse  possession,  must  nec- 


essarily depend  upon  the  character  of  the 
property,  its  location,  and  the  purposes  for 
which  it  is  ordinarily  fit  or  adapted.  If  a 
person  should  take  possession  of  farm  land, 
build  a  barn  and  shed  thereon,  and  allow 
them  to  remain  there  for  years,  plow  and 
cultivate  and  harvest  the  cfops,  paying 
taxes  on  the  premises,  and  actually  occupy- 
ing them,  for  such  a  period  of  time,  as  is 
usually  done  by  the  actual  owners  of  such 
fai'm  land,  with  such  open,  notorious,  visi- 
ble, hostile,  and  exclusive  acts  as  would  de- 
stroy the  actual  or  constructive  possession 
of  the  ti-ue  owners,  if  continued  long  enough, 
it  would  ripen  into  a  CjOmplete  title,  although 
there  might  not  be  actual  residence  upon  the 
premises  by  the  adverse  claimant  or  posses« 
sor.  The  acts  necessai-y  for  such  purpose 
might  be  different  with  a  city  lot.  The 
question  is  as  to  what  purpose  it  may  be 
ordinarily  fit  and  adapted,  and  reasonably 
used.  In  a  large  manufacturing  city,  with 
vast  lumber  interest,  the  use  of  a  lot  for 
piling  lumber  thereon,  and  there  storing  it 
or  keeping  it  for  sale,  might  be  the  best  use 
to  which  such  lot  could  possibly  be  adapted. 
And,  as  part  of  such  business,  the  building 
of  a  barn  and  shed  thereon,  for  keeping  and 
stabling  horses  used  in  procuring  logs,  as  a 
part  of  such  lumber  business,  would  cpn- 
stitute  a  very  strong  ingi-edient  of  adverse 
possession. 

The  mere  fact  that  time  may  intervene 
between  successive  acts  of  occupancy,  while 
a  party  is  engaged  in  such  lumber  business, 
as  by  taking  his  teams  from  such  stable  and 
shed,  and  using  them  in  procm-ing  logs  to 
be  sawed  into  lumber  to  be  by  him  piled 
and  stored  upon  such  premises,  does  not  nec- 
essarily destroy  the  continuity  of  possession. 
During  such  time,  the  lumber  left  upon  the 
lot,  the  barn  and  shed  there  remaining,  and 
various  implements  connected  with  such 
lumber  business  used  upon  the  premises, 
would  indicate  that  some  one  was  exercising 
acts  of  domain  over  the  lot,  even  though  the 
party  was  occasionally  and  temporarily  ab- 
sent upon  the  business  for  which  he  was. 
using  such  lot. 

We  think  the  whole  record  herein  presents 
such  a  state  of  facts  that  the  court  below 
was  justified  in  its  finding  and  decision.  If 
there  was  error  in  the  court  admitting  testi- 
mony shOT\ing  that  sand  was  removed  from 
the  premises  after  the  commencement  of 
this  action,  it  certainly  could  not  have  prej- 
udiced the  defendant.  We  find  no  prejudi- 
cial error,  and  the  order  of  the  court  below, 
denying  a  motion  for  a  new  trial,  is  affii-med. 


TITLE  BY  ADVERSE  POSSESSION". 


287 


WHITAKER  et  al.  v.  ERIE  SHOOTING 
CLUB  et  al. 

(60  N.  W.  983,  102  Mich.  454.) 

Supreme  Court  of  Michigan.     Nov.  20,  1894. 

Appeal  from  circuit  court,  Monroe  county, 
in  chancery;   Edward  D.  Kinue,  Judge. 

Bill  by  Maria  S.  AMiitaker  and  others 
against  the  Erie  Shooting  Club  and  Jay  W. 
Keeney  to  quiet  titht  to  certain  land.  Judg- 
ment for  defendants,  and  complainants  ap- 
peal.    Affirmed. 

Willis  Baldwin  (Ira  G.  Humphrey,  of  coun- 
sel), for  appellants.  De  Forest  Paine,  for 
appellee  Erie  Shooting  Club.  Ira  R.  Gros- 
venor,  for  appellee  Keeney. 

GRANT,  J.  The  complainant  Maria  Is  the 
widow,  and  the  other  complainants  are  tlie 
heirs  at  law,  of  Harvey  Whitaker,  deceased. 
who  died  in  Jime,  1890.  Harvey  Whitaker 
purchased  the  land  in  question  in  1837.  The 
object  of  the  bill  is  to  remove  a  cloud  from 
their  title,  caused  by  a  tax  deed  made  by  the 
state  of  Michigan,  January  16,  18G0,  to  Elias 
W.  Hodges  and  Andrew  J.  Keeney,  for  the 
taxes  of  1857,  and  a  lease  executed  by  An- 
drew J.  Keeney  to  the  Erie  Shooting  Club, 
August  28,  1889.  The  defendant  Keeney 'an- 
swered, claiming  title  by  adverse  possession, 
and  asking  affii-mative  relief,  affirming  his 
title.  The  shooting  club  answered,  admit- 
ting the  execution  of  the  lease,  and  of  its 
corporation,  and  leaves  complainants  to  their 
proofs  on  their  other  allegations. 

The  situation  and  character  of  the  land: 
The  land  is  a  piece  of  marsh  situated  in  the 
southeast  corner  of  Monroe  county,  about 
120  rods  from  the  mainland,  on  the  west, 
and  a  mile  from  the  sea  wall  of  the  shore  of 
Lake  Erie,  on  the  east.  Between  it  and  the 
mainland  is  mud,  which  is  at  times  covered 
with  water.  Upon  it  is  a  large  sulphm* 
spring.  Around  the  spring  the  land  is  a  lit- 
tle higher,  and,  on  a  few  acres,  grows  hay  fit 
for  use.  At  low  water  the  land  around  this 
spring  is  fi-om  a  foot  and  a  half  to  two  feet 
above  the  water.  When  the  wind  blows 
from  Lake  Erie  the  land  is  entirely  sub- 
merged. The  only  way  to  reclaim  it,  so  as 
to  render  it  fit  for  cultivation,  would  be  the 
erection  of  a  dike  around  it,  several  feet 
high.  The  only  use  to  which  it  can  ever  be 
put,  aside  from  the  cutting  of  the  hay  arouud 
the  spring,  is  for  hunting  birds,  muskrats, 
and  mink,  but  its  principal  use  is  for  hiuiting 
birds. 

Abandonment  by  complainants'  ancestor: 
From  1837  to  1892  neither  the  complainants 
nor  their  ancestor  exercised  any  act  of  pos- 
session. For  10  years  prior  to  his  death, 
Harvey  Whitaker  lived  in  Deti'oit,  40  miles 
distant  Maria  S.  Whitaker  testified  on  be- 
half of  the  complainants  as  follows:  "Q. 
Do  you  know  what  became  of  his  property? 
A.  Well,  it  was  overflowed.  We  had  noth- 
ing to  do  with  it.     Q.  What  did  you  do  with 


this  spring  lot?  A.  I  don't  know  as  any- 
thing. We  all  supposed  it  went.  We  consid- 
ered it  all  lost.  We  thought  it  wasn't  worth 
anything.  Q.  And  you  abandoned  it?  A. 
Yes.  Q.  You  never  paid  any  taxes  on  it? 
A.  No,  sir,  I  think  not.  I  never  knew  any 
being  paid.  Q.  When  did  you  first  know 
your  husband  left  this  property?  A.  I  knew 
he  bought  it  at  the  time,  but,  as  I  say,  we 
had  given  it  up.  It  was  overflowed,  and  we 
suppo.sed  it  was  worth  nothing.  I  don't  sup- 
pose he  knew  it  was  worth  anything."  Prior 
to  ISGO  the  land  was  sold  for  taxes  to  vari- 
ous parties,  who  took  no  steps  to  obtain  pos- 
session. 

Defendants'  connection  with  the  land: 
Mr.  Hodges  and  Andrew  J.  Keeney  knew 
that  Mr.  Whitaker  had  abandoned  the  land 
at  the  time  of  the  purchase  of  the  tax  title. 
Their  tax  deed  was  placed  upon  record 
January  30,  18G0.  From  that  time  to  the 
present  the  taxes  were  assessed  to  and  paid 
by  them.  Hodges  and  Keeney  leased  the 
right  to  ti"ap  upon  the  premises  to  various 
parties  every  yeai',  some  years  receiving 
four  or  flve  dollars;  some,  twelve  or  fifteen; 
and  other  years  receiving  nothing.  They 
also  caused  some  willows  to  be  planted 
near  the  spring,  and  occasionally  cut  hay. 
No  other  acts  of  actual  possession  are 
shown,  except  that  they  occasionally  went 
to  the  land  to  look  after  it,  as  owners  of 
land  usually  do.  From  1860  to  the  com- 
mencement of  this  suit,  it  was  understood 
by  all  living  in  the  neighborhood  that  this 
was  the  property  of  Hotlges  and  Keeney. 
On  May  8,  1879,  Andrew  J.  Keeney  execut- 
ed to  the  Bay  Point  Shooting  Club  a  lease 
of  the  undivided  half  intei-est  of  the  land, 
which  interest  is  now  the  sole  subject  of 
controversy  here,  for  the  purpose  of  hunting 
and  shooting  snipe,  wild  fowls,  and  all  other 
birds  recognized  as  game  by  the  laws  of 
the  state,  and  for  all  other  purposes  neces- 
sary and  incident  thereto,  and  for  no  other 
use  or  purpose.  This  lease  was  recorded 
November  15,  1880.  This  club  immediately 
caused  signs  to  be  painted,  and  posted  at 
various  places  around  this  land  the  follow- 
ing notice:  "Lauds  of  the  Bay  Point  Shoot- 
ing Club.  All  Trespassers  will  be  Prosecut- 
ed. [Signed]  A.  J.  Keeney,  President."  At 
the  termination  of  that  lease,  and  on  Au- 
gust 28,  1889,  Mr.  Keeney  executed  a  simi- 
lar lease  to  the  Erie  Shooting  Club,  which 
was  recorded  ^larch  22,  1890.  During  the 
occupancy  by  these  clubs,  these  signs  were 
placed  in  position  every  spring,  and  taken 
up  eveiT  fall,  because  the  ice  would  carry 
thom  awaj'.  Watchmen  were  also  employ- 
ed to  keep  off  trespassers  din-ing  the  shoot- 
ing season.  These  acts  of  possession  con- 
tinued from  1880  to  the  commencement  of 
this  suit,  in  1893. 

The  requirements  of  an  adverse  posses- 
sion necessary  to  establish  title  to  real  es- 
tate are  well  undei'stood.  The  difficulty 
arises    in    applying    these    requirements   to 


288 


TITLE. 


each  case  as  it  arises.  Each  case,  as  a  rule, 
must  be  controlled  by  its  own  facts  and 
circumstances.  The  established  rule  of  this 
court  is,  "It  is  sufficient  if  the  acts  of  own- 
ership are  of  such  a  character  as  to  openly 
and  publicly  indicate  an  assumed  conti'ol 
or  use  such  as  are  consistent  with  the  char- 
acter of  the  premises  in  question."  Murray 
V.  Hudson,  65  Mich.  670,  32  N.  W.  8S9. 
The  occupation  need  not  be  such  as  to  in- 
form a  passing  sti-anger  that  some  one  is 
asserting  title.  If  it  be  such  as  to  notify 
and  warn  the  owner,  should  he  visit  the 
premises,  that  a  person  is  in  possession 
under  a  hostile  claim,  it  is  sufficient.  After 
long  and  intentional  abandonment  by  the 
owner  in  this  case,  those  under  whom  the 
defendants  claim  obtained  a  tax  deed  from 
the  state  of  Michigan.  They  immediately 
placed  this  on  record.  This,  of  itself,  was 
a  sufficient  disseisin  to  support  an  action 
of  ejectment  by  the  original  owner.  Hoyt 
V.  Southard,  58  Mich.  434,  25  N.  W.  385. 
The  defendant  at  once  commenced  to  exer- 
cise such  acts  of  possession  and  ownership 
as  were  consistent  with  the  character  of 
the  land.  Evidence  of  the  general  under- 
standing in  the  neighborhood  that  they  were 
the  owners,  and  that  it  was  called  theirs,  was 
held  competent,  as  tending  to  establish  the 
notoriety  of  defendant's  po^^session  and 
claim  of  title.  Sparrow  v.  IJovey,  44  Mich. 
63,  6  N.  W.  93.  Pedes  possessio  is  not  in- 
dispensable. The  land  need  not  be  fenced. 
Buildings  are  not  necessary.  AVhere  the 
possession  claimed  was  by  cutting  grass 
and  pasturing  cattle  each  year  during  the 
season,  and  planting  trees,  it  was  held  to 
be  evidence  of  a  practically  continuous,  ex- 
clusive, and  hostile  possession.  Sauers  v. 
Giddings,  90  Mich.  50,  51  N.  W.  265.    Open- 


ly and  notoriously  claiming  and  using  land 
in  the  only  way  it  could  be  used  without 
fencing  or  cultivation  was  held  to  establish 
adverse  possession.  Curtis  v.  Campbell,  54 
Mich.  340,  20  N.  W.  69.  Cropping  land, 
though  no  one  was  actually  upon  it,  and 
nothing  done  thereon  between  harvest 
and  recropping,  were  held  to  establish  ad- 
verse possession.  Cook  v.  Clinton,  64  Mich. 
309,  31  N.  W.  317.  It  may  well  be  conceded 
that  paying  taxes,  or  assertion  of  title,  or 
the  common  imderstanding  in  the  neighbor- 
hood, or  making  surveys,  or  an  occasional 
renting  for  trapping  and  shooting,  is  not 
sufficient  to  establish  title  by  adverse  pos- 
session. But  they  are  all  competent  evi- 
dence to  be  considered  in  determining  the 
question.  The  notices  which  were  posted 
around  this  land  from  early  in  the  spring 
till  late  in  the  fall,  every  year  for  12  suc- 
cessive years,  was  notice  of  an  adverse 
title  and  possession.  The  owner,  if  he  visit- 
ed it,  could  not  have  failed  to  understand 
their  meaning.  They  were  inconsistent 
with  the  rights  of  the  original  owner  of 
the  fee.  The  land  was  then  valuable  for 
little  else  than  shooting.  Mr.  Whitaker 
lived  within  40  miles  of  this  land  for  10 
years,  with  these  open,  notorious  assertions 
ol  title  and  possession  posted  around  the 
land  from  early  in  the  spring  till  late  in 
the  fall.  This  substantially  covered  all  the 
time  during  which  this  land  could  be  used 
for  any  purpose  except  for  hunting  musk- 
rats.  The  notice  denied  all  right  to  use 
unless  authorized  by  the  club.  We  need 
not  discuss  the  question  of  possession  prior 
to  the  lease  of  the  Bay  Point  Shooting  Club. 
Ten  years'  adverse  possession  under  the  tax 
deed  is  sufficient.  The  decree  will  be  af- 
firmed.   The  other  justices  concurred. 


TITLE  BY  ACCRETION. 


289 


LOA'INGSTON  et  al.  v.  ST.  CLAIR  COUNTY. 

(64  111.  5G.) 

Supreme  Court  of  Illinois.     June  Term,   1872. 

Appeal  from  circuit  court,  St.  Clair  county; 
Joseph  Gillespie,  Judge. 

Wm.  H.  Underwood  and  Davis  &  Thomas, 
for  appellants.  G.  &  G.  A.  Koerner  and  Louis 
Houck,  for  appellee. 

THORNTON,  J.  If  the  land  of  the  riparian 
proprietor. was  bounded  by  the  Mississippi,  his 
right  to  the  possession  and  enjoyment  of  the  al- 
luvion is  not  affected,  whether  the  stream  be 
navigable  or  not.  By  the  common  law,  alluvion 
is  the  addition  made  to  land  by  the  washing  of 
the  sea,  a  navigable  river  or  other  stream, 
whenever  the  increase  is  so  gradual  that  it  can 
not  be  perceived  in  any  one  moment  of  time. 

The  navigability  of  the  stream,  as  the  term  is 
used  at  common  law,  has  no  applicability  to  this 
case.  If  commerce  had  been  obstructed,  or  the 
public  easement  inteniipted,  or  a  question  was 
to  arise  as  to  the  ownership  of  the  bed  of  the 
stream,  then  the  inquiry  as  to  whether  the 
stream  was  navigable  or  not,  in  the  sense  of  the 
common  law,  might  be  pertinent.  No  such  ques- 
tion is  presented.  On  this  branch  of  the  case, 
the  only  question  is,  have  the  United  States,  or 
the  state,  or  the  riparian  owner,  the  right  to  the 
accretion? 

If  the  river  is  the  boundary,  the  alluvion,  as 
fast  as  it  forms,  becomes  the  proi>erty  of  the 
owner  of  the  adjacent  land  to  which  it  is  at- 
tached. On  a  great  public  highway,  like  the 
Mississippi,  floating  an  immense  commerce,  and 
bearing  it  to  evei-y  part  of  the  globe,  purchasers 
must  have  obtained  lands  for  the  beneficial  use 
of  the  river  as  well  as  for  the  land.  Can  it  be 
presumed  that  the  United  States  would  make 
grants  of  lands  bordering  upon  this  river,  with 
its  turbulent  current,  and  subject  to  constant 
change  in  its  banks  by  alluvion  upon  the  one 
side  and  avulsion  upon  the  other,  and  then  claim 
nil  accretion  formed  by  the  gradual  deposition 
of  sand  and  soil,  and  deprive  the  grantee  of  his 
river  front?  If  he  should  lose  his  entire  grant 
by  the  washing  of  the  river,  he  must  bear  the 
loss,  and  he  should  be  permitted  to  enjoy  any 
gain  which  the  ever-varying  channel  may  bring 
to  him.  If  a  great  government  were  to  under- 
take, under  such  circumstances,  to  dispossess  its 
grantee  of  his  river  front,  the  attempt  would  be 
akin  to  fraud,  and  it  would  lose  the  respect  to 
which  beneficent  laws  and  the  protection  of  the 
citizen  would  entitle  it. 

We  then  assume  that  the  act  of  congress  of 
1796  (1  Stat.  468,  §  9),  which  declares  all  navi- 
gable rivers  in  a  certain  district  public  high- 
ways, has  no  bearing  upon  the  questions  to  be 
considered.  The  riparian  owner  has  a  right  to 
the  alluvion,  whether  the  stream  be  navigable 
or  unnavigable. 

Blackstone  says  (book  2,  p.  202)  as  to  lands 
gained  from  the  sea  by  alluvion,  where  the  gain 
is  by  little  and  little,  by  small  and  impercepti- 
ble degi-ees,  it  shall  go  to  the  owners  of  the  land 
GATES,R.P.— 19 


adjoining.  "For  de  minimis  non  curat  lex;  and, 
besides,  these  owners  being  often  losers  by  the 
breaking  in  of  the  sea,  or  at  charges  to  keep 
it  out,  this  possible  gain  is  therefore  a  recipro- 
cal condition  for  such  charge  or  loss." 

The  same  reasoning  applies,  with  all  its  force, 
to  the  lands  abutting  upon  the  Mississippi  river. 

In  Middletou  v.  Pritchard,  3  Scam.  510,  this 
court  said:  "All  alluvions  belong  to  the  riparian 
proprietor,  both  by  the  common  and  civil  law." 

In  the  case  of  Rex  v.  Yarborough,  3  Barn.  & 
C  91,  land  gained  from  the  sea  by  alluvion  or 
projection  of  extraneous  matter,  whereby  the 
sea  was  excluded  and  prevented  from  over- 
flowing it,  was  adjudged  to  be  parcel  of  the 
demesne  lands  of  the  adjacent  manor. 

This  question  has  been  discussed  with  pro- 
found research  and  great  ability  by  the  courts 
in  Louisiana,  as  to  the  accretions  upon  this 
same  river,  and  the  law  clearly  announced. 

In  Municipality  No.  2  v.  Orleans  Cotton- 
Press,  18  La.  122,  it  was  declared  that  the 
right  to  future  alluvial  formations  was  a  right 
inherent  in  the  property,  an  essential  attrihutt- 
of  it,  the  result  of  natural  law,  in  consequence 
of  the  local  situation  of  the  land;  that  cities  as 
well  as  individuals  had  the  right  to  acquire  it. 
pere  alluvuouis  as  riparian  proprietor;  and  that 
the  right  was  founded  in  justice,  both  on  ac- 
count of  the  risks  to  which  the  land  was  ex- 
posed, and  the  burden  of  protecting  the  estate. 
The  court  further  assimilated  the  right  to  tuo 
right  of  the  owner  of  lands  to  the  fruits  of  a 
tree  growing  thereon,  and  said:  "Such  an  at- 
tempt to  transfer  from  the  owner  of  the  land 
to  the  city  the  future  increase  by  alluvion. 
would  be  as  legally  absurd  as  if  the  legislature- 
had  declared  that,  after  the  incorporation  of 
the  city,  the  fruits  of  all  the  orange  trees  with- 
in its  limits  should  belong  thereafter  to  the 
city,  and  not  to  the  owners  of  the  orchard  anc^ 
gardens." 

The  same  principle  was  declared  in  Banks  v, 
Ogden,  2  Wall.  57,  as  applicable  to  Lake  Michi- 
gan. 

See,  also,  ^Layor,  etc.,  of  New  Orleans  v.  U. 
S.,  10  Pet.  662:    Jones  v.  Soulard.  24  How.  41. 

The  same  doctrine  is  fully  declared  in  a  re- 
cent case:    Warren  v.  Chambers,  25  Ark.  120. 

To  determine  the  title  to  the  accretion,  we 
must  ascertain  the  locality  of  the  land  of  the 
adjacent  owner.  We  need  not  enter  upon  a 
discussion  of  the  laws  of  congress  and  of  the 
state,  by  virtue  of  which  the  county  claims 
title,  if  the  land  previously  granted  by  the  Unit- 
ed States  was  bounded  by  the  river,  and  the 
accretion  is  attached  to  it. 

Hilgard,  the  surveyor,  testified  that  the  ac- 
cretion was  all  west  of  the  Condaire  tract. 
The  only  portion  of  the  field  notes  we  desire  to 
call  attention  to  is  the  following:  "To  a  post 
on  the  westerly  side  of  the  river  L'Abbe,  or 
Cahokia  creek,  thence  down  the  said  river  or 
creek,  with  the  different  courses  thereof,"  antJ. 
"thence  N.  85  deg.  W.  174'  poles  to  a  post  or* 
the  bank  of  the  Mississippi  river,  from  whicl> 
thence  N.  5  deg.  E.  up  the  Mississippi  river, 
and    binding    therewith,"     (i^assing    the    south- 


290 


TITLE. 


westerly  corner  of  Nicholas  Jarrot's  survey  No. 
579,  claim  No.  99,  at  6  poles,)  "551  poles  and 
10   links,    to    a    post    northwesterly    corner    of 

Nicholas   Jarrot's    survey    No.   ,    claim   No. 

100."  This  survey  was  made  in  1815.  From 
the  copy  of  the  plat  of  it,  from  the  custodian 
of  the  United  States  surveys,  it  will  be  seen 
that  the  line  along  Cahokia  creek  meanders 
with  the  stream,  which  was  sinuous,  and  hence 
the  call  in  the  notes,  "down  the  said  creek  with 
the  different  courses  thereof." 

A  further  examination  of  the  plat  will  show 
that,  though  the  line  from  "a  post  on  the  bank 
of  the  Mississippi  river,"  "to  a  post  northwester- 
ly corner  of  Nicholas  Jarrot's  survey,  claim 
No.  100,"  is  a  straight  line,  the  river  bank,  as 
indicated  by  the  plat,  was  also  straight  in  1815. 
The  Condaire  survey  embraces  three  militia 
claims,  which  had  been  surveyed  before,  and 
which  were  confirmed  to  Jarrot. 

One  of  the  Jarrot  surveys  begins  on  the  bank 
of  the  Mississippi,  and  thence  to  a  point  in  the 
river,  etc. 

The  defendants  traced  title  from  patents  con- 
firmatory of  these  several  surveys,  and  they  al- 
so proved  title  to  "Bloody  Island,"  which,  when 
surveyed  in  1824,  was  three-fourths  of  a  mile 
north  of  the  tract  in  controversy. 

In  behalf  of  the  county,  it  is  assumed  that 
the  patent  to  survey  579  contains  no  indication 
that  the  river  is  the  boundary;  that  the  west 
line  of  the  Condaire  claim,  being  the  line  next 
to  the  river,  is  identical  with  the  west  line  of 
the  militia  claims;  that  Condaire  took  no  por- 
tion of  the  militia  claims,  but  only  the  frac- 
tions east  of  them  and  between  them  and  Ca- 
hokia creek;  that  the  lands  granted  were  bound- 
ed by  specific  lines,  and  not  by  the  river,  and 
therefore  the  grants  are  limited  grants,  and  tlie 
land  in  dispute  is  outside  of  their  boundary 
lines. 

Concede  that  the  Jarrot  survey  did  not  make 
the  river  the  boundary,  by  specific  call,  yet  its 
beginning  was  on  the  bank  of  the  river,  op- 
posite St.  Louis,  and  thence  it  followed  the 
river  to  a  point  in  it.  Hilgard  testified  that 
this  survey  was  on  the  old  bank  of  the  river. 
It  is,  then,  evident  that  at  this  time,  which 
was  some  years  prior  to  the  Condaire  survey, 
there  was  no  land  between  the  western  line  of 
the  Jarrot  survey  and  the  river.  All  the  plats 
introduced  in  evidence  show  that  the  river  bank 
was  straight,  and  the  point  in  the  river  must 
have  been  made  for  the  pui-pose  of  obtaining 
Ihe  bearing  of  the  witness  tree,  a  sycamore, 
250  links  from  the  point.  It  is  manifest  that 
the  river  was  the  boundary,  and  whether  the 
grant  was  bounded  by  the  river,  or  on  the 
river,  can  make  no  difference  as  to  the  ques- 
tion involved.  The  grant  may  be  so  limited  as 
not  to  carry  it  to  the  middle  of  the  river,  and 
yet  not  exclude  the  right  to  the  alluvion. 

A  large  number  of  cases  have  been  cited  by 
one  of  the  counsel  for  the  county,  to  establish 
that  a  grant  is  not  carried  to  the  centre  of  a 
stream,  but  stops  at  the  bank,  if  the  grantor 
(l(>scribes  the  line  as  upon  the  margin,  or  at 
the  edge  or  shore,  and  that  these  terms  become 


monuments,  and  that  they  indicate  an  inten- 
tion to  stop  at  the  edge  or  margin  of  the  river. 

This  may  be  good  law,  and  not  affect  the 
right  of  the  defendants.  They  do  not  claim  the 
bed  of  the  stream,  and  the  proof  shows  that 
the  river  does  not  i-un  over  the  land  in  dispute 
at  ordinary  stages  of  water.  TTieir  claim,  if 
established,  does  not  obstruct  the  river,  or 
interfere  with  its  free  navigation  and  use  by 
the  public. 

But  the  Condaire  survey  not  only  covers  the 
Jarrot  surveys,  but  extends  beyond  them.  It 
not  only  takes  any  fractions  between,  the  Jarrot 
surveys  and  Cahokia  creek,  but  the  land,  if  any, 
between  their  western  line  and  the  river.  The 
Condaire  survey  run  up  the  river  and  binding 
therewith,  and  passed  the  southwesterly  corner 
of  the  Jarrot  survey.  No.  579,  at  6  poles.  Lan- 
guage could  not  make  it  more  plain  that  the 
western  line  was  bounded  by  the  river,  and  the 
plats  confirm  this  view. 

The  only  construction  to  be  given  to  these 
grants  is,  that  the  United  States  had  conveyed 
the  land  to  the  bank  of  the  Mississippi.  It 
follows  that  the  grantees  were  riparian  proprie- 
tors, and  are  the  owners  of  the  alluvial  forma- 
tions attached  to  their  land». 

Unless  such  construction  be  given  and  ad- 
hered to  rigidly,  almost  endless  litigation  must 
ensue  from  the  frequent  changes  in  the  cuwent 
of  the  Mississippi,  and  the  continual  deposits 
upon  one  or  the  other  of  its  banks;  the  value 
of  land  upon  its  borders  would  depreciate,  and 
the  prosperity  of  its  beautiful  towns  and  cities 
would  be  seriously  impaired. 

Counsel  say,  at  the  time  the  locations  were 
made  there  was  no  advantage  of  river  front,  no 
wharfage  and  no  wood  yards  This  may  be 
true,  but  even  at  this  early  period  the  grantees 
must  have  realized  the  vast  importance  of  the 
Mississippi  to  them,  and  to  all  the  people  of 
the  states  bordering  upon  it,  in  the  grand  fu- 
ture soon  to  be  unfolded.  They  must  have  seen 
the  necessity,  and  accepted  the  grants  for  the 
purpose  of  securing  an  approach  to  the  river. 

From  the  proof,  before  1819  a  ferry  was 
established  across  the  river  near  to  the  land  in 
dispute,  and  has  been  since  in  constant  opera- 
tion. Before  the  grant  of  the  swamp  and  over- 
flowed lands  to  the  state,  in  1850,  a  city  had 
sprung  up  on  the  Missouri  side  of  the  river, 
and  a  prosperous  village  was  growing  on  the 
Illinois  shore.  Before  the  survey  by  the  county 
of  the  swamp  lands,  in  1852,  a  charter  for  a 
railroad  had  been  granted  by  the  state,  which 
resulted  in  the  construction  of  a  road  from 
Terre  Haute,  in  the  state  of  Indiana,  to  Illinois- 
town.  Prior  to  the  grant  made  by  the  United 
States  in  1870,  as  shown  by  the  plat  offered 
in  evidence,  a  number  of  railroad  tracks  had 
been  constructed  upon  the  ground  formed  by 
accretion,  and  an  elevator  erected  and  dykes  for 
the  use  of  wagons,  and  a  large  exi)enditure  of 
money  made  by  the  ferry  company  for  the 
preservation  of  the  banks  recently  made. 

It  needed  no  prophetic  eye  to  foresee,  prior  to 
the  year  1850,  these  grand  improvements  which 
bring  the  products  of  an  empire  to  the  father 


TITLE  BY  ACCRETI02T 


2yi 


of  waters.  Thoir  absolute  necessity,  aud  conse- 
quent construction,  as  an  outlet  for  our  im- 
mense produce,  had  been  known  for  more  than  a 
quarter  of  a  century  before  their  completion. 
Their  usefulness  would  be  greatly  crippled,  and 
the  public  thereby  seriously  suffer,  if  ready  ac- 
cess to  the  river  was  denied. 

It  would  be  a  strained  construction,  to  hold 
that,  in  making  these  grants,  the  United  States 
reserved  all  accretions,  and  thus  to  deprive  these 
proprietors  of  ferry  privileges  and  the  beneficial 
enjoyment  of  the  river. 

It  is  further  contended  that  the  lauds  are  not 
accretions,  as  they  were  made  by  artificial,  and 
not  natural,  means.  It  is  not  at  all  certain, 
from  the  proof,  that  the  accretions  were  entirely 
the  result  of  artificial  structures,  or  that  they 
would  not  have  been  formed  without  them.  The 
constniction  of  coal  dykes  facilitated  the  forma- 
tion, and  the  soil  was  prevented  from  washing 
away  by  the  expenditure  of  money  by  the  ferry 
company. 

Jonathan  Moore,  who  had  known  the  river 
since  1813,  testified  that  the  accretions  had 
commenced  to  form  before  the  construction  of 
the  dykes,  and  McClintock  and  Jarrot  testified 
to  the  same  effect. 

Concede,  however,  that  the  dykes,  to  some  ex- 
tent, caused  the  accretions;  they  were  not  con- 
structed for  such  purpose,  and  appellants  had 
nothing  to  do  with  their  erection.  They  were 
built  for  the  accommodation  of  the  public,  and 
to  secure  an  approach  to  the  ferry  boats,  and 
the  city  of  St.  Louis  did  some  work  to  pre- 
serve its  harbor.  Improvements  were  also  made 
by  the  United  States  to  throw  the  channel  of 
the  river  towards  the  city. 

The  fact  that  the  labor  of  other  persons 
changed  the  current  of  the  river,  and  caused 
the  deposit  of  alluvion  upon  the  land  of  ap- 
pellants can  not  deprive  them  of  a  right  to  the 
newly  made  soil. 

Chancellor  Kent,  after  declaring  the  common 
law  doctrine,  that  grants  of  land  bounded  on 
the  margins  of  rivers,  carry  the  exclusive  right 
of  the  grantee  to  the  centre  of  the  stream,  un- 
less there  is  a  clear  intention  to  stop  at  the 
edge,  says:  "Tlie  proprietors  of  the  adjoining 
banks  have  the  right  to  use  the  land  and  water 
of  the  river,  as  regards  the  public,  in  any  way 
not  inconsistent  with  the  easement;  and  neither 
the  state  nor  any  other  individual  has  the  right 
to  divert  the  stream  and  render  it  less  useful 
to  the  owners  of  the  soil."  3  Kent,  Comm. 
427. 


If  portions  of  soil  were  added  to  real  estate 
already  possessed,  by  gradual  depositions, 
through  the  operation  of  natural  causes,  or  by 
slow  and  imperceptible  accretion,  the  owner  of 
the  land  to  which  the  addition  has  been  made 
has  a  perfect  thle  to  the  addition.  Upon  no 
principle  of  reason  or  justice  should  he  be  de- 
prived of  accretions  forced  upon  him  by  the 
labor  of  another  without  his  consent  or  con- 
nivance, and  thus  cut  off  from  the  benefits  of 
his  original  proprietorship.  If  neither  the  state 
nor  any  other  individual  can  divert  the  water 
fi-om  him,  artificial  structures,  which  cause  de- 
posits between  the  old  and  new  banks,  shoul  1 
not  divest  him  of  the  use  of  the  water.  Other- 
wise, ferry  and  wharf  privileges  might  be  utter- 
ly destroyed,  and  towns  and  cities,  built  with 
sole  reference  to  the  use  and  enjoyment  of  the 
river,  might  be  entirely  separated  from  it. 

In  Godfrey  v.  City  of  Alton,  12  111.  29,  the 
public  landing  had  been  enlarged  aud  extended 
into  the  river,  both  by  natural  and  artificial 
means,  and  this  court  held  that  the  accretions 
attached  to  and  formed  a  part  of  the  lauding. 

In  New  Orleans  v.  U.  S.,  10  Pet.  (>G2,  the 
quay  had  been  enlarged  by  levees  constructed 
by  the  city  to  prevent  the  inundation  of  the 
water,  and  the  court  held  that  this  did  not  im- 
pair the  rights  of  the  city  to  the  quay. 

In  Jones  v.  Soulard,  supra,  the  intervening 
channel  between  the  island  and  the  Missouri 
shore  had  been  filled  up,  in  consequence  of 
dykes  constructed  by  the  city,  and  the  riparian 
owner  succeeded. 

In  the  case  at  bar,  the  accretions  have  not 
been  sudden,  but  gradual,  as  we  gather  from 
the  testimony.  The  city  of  St.  Louis,  to  pre- 
serve its  harbor,  and  to  prevent  the  channel 
from  leaving  the  Missouri  shore,  threw  rock 
into  the  river,  and  the  coal  dykes  were  made  to 
afford  access  to  boats  engaged  in  carrying 
across  the  river.  The  ferrj-  company  protected 
such  accretions  by  an  expenditure  of  labor  and 
money. 

The  accretions,  then,  are  partly  the  result  of 
natural  causes  and  structures  and  work  erected 
and  performed  for  the  good  of  the  public.  Ap- 
pellants should  not  tliercby  lose  their  frontage 
on  the  river  and  be  debarred  of  valuable  rights 
heretofore  enjoyed.  This  would  be  a  grievous 
wrong,  for  which  there  would  be  no  adequate 
redress. 

The  judgment  of  the  circuit  court  is  reversed 
and  the  cause  remanded. 

Judgment  reversed. 


292 


TITLE. 


TATUM  V.  CITY  OF  ST.  LOUIS, 

(28  S.  W.  1002,  125  Mo.  647.) 

Supreme  Court  of  Missouri,  Division  No.  1. 
Dec.  22,  1894. 

Error  to  St.  Louis  circuit  court;  Leroy  B. 
Valleant,  Judge. 

Ejectment  by  Joseph  Tatum  against  the 
city  of  St.  Louis.  There  was  a  judgment 
for  defendant,  and  plaintiff  brings  error. 
Reversed. 

J.  T.  Tatum  and  Leverett  Bell,  for  plain- 
tiff in  error.  Wm.  C.  Marshall,  for  defend- 
ant in  error. 

MACFARLANE,  J.  The  action  is  eject- 
ment to  recover  possession  of  a  parcel  of 
land  in  the  city  of  St.  Louis  fronting  398 
feet  on  the  Mississippi  river,  and  having  a 
depth  back  of  307  feet.  The  land  is  claimed 
by  the  city  as  part  of  its-  public  wharf.  The 
answer  was  a  general  denial  and  a  plea  of 
the  statutes  of  limitation.  The  case  was 
tried  to  the  court  without  a  jury,  and  a  ver- 
dict and  judgment  was  rendered  for  defend- 
ant, and  plaintiff  appealed. 

Plaintiff  claims  title  through  concession 
made  to  Joseph  Brazeau,  and  confirmation 
thereof  by  act  of  congress  in  1836.  These 
concessions  were  bounded  on  the  east  by  the 
INIississippi  river,  making  a  frontage  on  the 
river  of  12  arpens.  Plaintiff,  who  sues  as 
trustee  for  Mrs.  Virginia  Lynch,  claims  title 
to  the  land  in  question  as  being  accretions 
to  the  land  so  conceded  and  confirmed. 
AVithout  tracing  the  title  from  Brazeau,  as 
was  done  on  the  trial,  it  will  be  sufficient 
to  say  that  in  183G  the  original  concessions 
were  divided  into  five  lots,  each  of  which 
fronted  39Sy2  feet  on  the  Carondelet  road, 
now  avenue,  and  extended  east  to  the  river, 
and  John  B.  Douchouquette  about  that  time 
became  the  owner  of  lot  4  of  said  division. 
At  this  time  the  distance  from  Carondelet 
avenue  to  the  river  was  about  1,800  feet, 
while  at  the  ti-ial  it  was  about  2,800  feet. 
There  was  consequently  about  1,000  feet  be- 
tween the  east  line  of  the  lot,  which  was 
then  the  river  bank,  and  the  river  bank  as 
it  is  at  present.  The  land  in  dispute  is  a 
part  of  this  added  land.  In  1839  the  west 
half  of  all  five  of  these  lots  was  subdivided 
into  an  addition  to  the  city.  Columbus 
street,  running  north  and  south  through  the 
center  of  these  lots,  formed  the  eastern 
boundary  of  the  addition.  In  1850  the  title 
of  that  part  of  lot  4  lying  between  Columbus 
street  and  the  river  was  vested  as  follows: 
INIrs.  Lynch  held  an  estate  for  life  in  the 
whole,  and  an  undivided  one-fourth  of  the 
remainder  in  fee;  and  Victoria  Douchou- 
quette, now  Victoria  Whyte,  an  undivided 
three-fourths  of  the  remainder  in  fee.  On 
May  17,  1870,  by  proper  deeds,  the  title  of 
Mrs.  Lynch  was  vested  in  Joseph  T.  Tatum 
as  trustee  for  her.  Since  the  commencement 
of  this  suit,  the  interest  of  Mrs.  Lynch  has 


been  assigned  to  Mrs.  Whyte,  who  has  been 
substituted  as  plaintiff.  The  evidence  showed 
that  as  early  as  1845  an  island,  known  as 
"Duncan's  Island,"  formed  in  the  river  op- 
posite the  land  comprising  the  original  Bra- 
zeau concession,  but  it  is  conflicting  as  to 
whether  the  southern  end  thereof  extended 
as  far  south  as  the  lot  in  question.  Origin- 
ally a  part,  at  least,  of  the  channel  of  the 
river  flowed  between  the  island  and  the 
Missouri  shore.  This  part  of  the  channel 
subsequently  became  a  mere  slough,  and 
dikes  were  run  out  from  the  main  shore,  con- 
necting it  with  the  island.  It  does  not  ap- 
pear that  any  of  these  dikes  were  built  as 
far  south  as  said  lot  4.  The  slough  was  sub- 
sequently filled  entirely,  and  the  river  bank 
was  changed  to  the  east  side  of  the  island. 
As  has  been  said,  the  land  thus  formed  ex- 
tended east  from  plaintiff's  original  bound- 
ary about  1,000  feet.  Main  street  was  es- 
tablished over  this  new-made  land,  and  the 
river  front  was  declared  by  an  ordinance  of 
the  city  to  be  a  public  wharf.  The  land 
claimed  in  this  suit  is  a  part  of  that  dedicat- 
ed by  the  city  as  a  wharf,  but  the  evidence 
fails  to  show  any  improvement  as  such. 
Much  evidence  was  introduced  for  the  pur- 
pose of  proving  that  the  slough  between  the 
island  and  the  shore  was  filled,  and  the  new 
land  formed,  by  means  of  the  obstruction  o' 
the  water  by  the  dikes,  by  the  constructio- 
of  the  Iron  Mountain  Railroad  on  trestles 
along  the  slough,  by  filling  with  dirt  taken 
from  otlier  portions  of  the  road,  by  filling 
by  the  city,  and  constructing  the  wharf.  De- 
fendant claims  on  this  appeal  that— First,  it 
was  not  shown  on  the  trial  that  defendant 
was  in  possession  of  the  land  sued  for;  sec- 
ond, that  the  action  is  barred  by  the  statutes 
of  limitation;  third,  that  the  land  is  not  an 
accretion  to  plaintiff's  original  ti-act;  fourth 
that  the  city  is  entitled  to  an  easement  in  the 
land  for  a  public  wharf  by  virtue  of  a  license 
conferred  upon  it  by  .the  plaintiff  in  1851;. 
fifth,  that  an  outstanding  title  in  Thomas 
Marshall  was  shown. 

1.  At  the  conclusion  of  plaintiff's  evidence 
in  chief  defendant  prayed  the  court  to  non- 
suit him,  for  the  reason  that  there  was  no 
evidence  that  it  was  in  possession  of  the 
property  at  the  commencement  of  the  suit. 
This  prayer  was  properly  denied,  for  the 
reason  that  the  possession  of  defendant  was, 
by  the  plea  of  the  statute  of  limitation,  sub- 
stantially admitted.  By  this  plea  defendant 
states  "that  it  has  been  in  open,  notorious, 
continuous,  peaceable,  and  adverse  possession 
of  the  premises  described  in  the  petition 
since,  to  wit,  1850,  claiming  to  be  the  owner 
thereof,  against  the  plaintiffs  and  all  other 
persons."  Under  this  plea,  possession  at  the 
commencement  of  the  suit  must  be  taken  as 
admitted,  and  proof  thereof  was  unneces- 
sary. 

2.  At  the  conclusion  of  the  evidence  the 
court  made  this  finding  or  declaration  of 
law:    "The  proposition  that  the  land  in  ques- 


TITLE  BY  ACCRETION. 


293 


tion  was  formed  by  natural  accretions  to 
plaintiff's  land  on  the  main  shore  is  not  prov- 
en by  the  evidence."  No  other  declarations 
of  law  was  asked  by  either  party,  or  given 
by  the  court.  The  ground  upon  which  the 
court  reached  its  conclusion  is  not  left  in 
doubt.  Plaintiff's  only  claim  of  title  to  the 
land  was  that  it  was  formed  by  accretions 
to  his  original  tract.  The  finding  of  the 
court,  as  stated,  involved  this  proposition  of 
law:  If  the  land  in  question  was  not  form- 
ed by  natural  accretions  to  his  land  on  the 
main  shore,  plaintiff  could  not  recover.  If 
this  declaration  announced  a  correct  prin- 
ciple of  law,  and  there  was  substantial  evi- 
dence tending  to  prove  that  the  land  was  not 
formed  by  natural  accretions,  the  finding 
would  be  as  conclusive,  on  appeal,  as  the  ver- 
dict of  a  jury  would  have  been.  The  evi- 
dence tended  to  prove  that  the  land  was 
formed  against  the  bank  of  the  river  oppo- 
site lot  4  by  reason  of  artificial  dikes  and 
other  obstructions  to  the  water  between 
Duncan's  Island  and  the  main  shore,  and  by 
filling  the  slough  by  the  railroad  company 
and  the  defendant  city.  The  weight  of  the 
evidence  was  at  least  to  the  effect  that  nei- 
ther the  island  nor  slough,  at  the  time  the 
improvements  were  commenced,  extended 
as  far  south  as  plaintiff's  land.  In  view  of 
the  evidence,  we  must  assume  that  the  court 
distinguished  between  such  accretions  as  are 
formed  by  obstructing  the  flow  of  the  wa- 
ter or  changing  the  current  by  artificial 
means  and  such  as  are  formed  without  arti- 
ficial interference  with  the  banks  or  the 
natural  flow  of  the  water.  The  qualification 
made  by  the  word  "natural,"  as  used  in  the 
finding,  clearly  indicates  this  distinction. 
We  think  the  law  makes  no  such  distinction. 
The  riparian  owner  is  entitled  to  the  laud 
formed  by  gradual  and  imperceptible  accre- 
tions from  the  water,  regardless  of  the  cause 
which  produced  it.  This  right  he  cannot  be 
deprived  of  by  the  acts  of  others  over  whom 
he  has  no  control,  and  for  w^hich  he  is  in  no 
way  responsible.  It  was  pertinently  said 
by  Mr.  Justice  Swayne,  in  St.  Clair  Co.  v. 
Lovingston,  23  Wall.  66:  "It  is  insisted  by 
the  learned  counsel  for  the  plaintiff  in  error 
that  the  accretion  was  formed  wholly  by  ob- 
structions placed  in  the  river  above,  and 
hence  that  the  I'ules  upon  the  subject  of  al- 
luvion do  not  apply.  If  the  fact  be  so,  the 
consequence  does  not  follow.  There  is  no 
warrant  for  the  proposition.  The  proximate 
cause  was  the  deposit  made  by  the  water. 
Whether  the  flow  of  water  was  natural  or 
affected  by  artificial  means  is  immaterial." 
See,  also,  Halsey  v.  McCormick,  IS  N.  Y. 
149;  3  Washb.  Real  Prop.  353.  From  the  evi- 
dence and  declaration  of  law  given  by  the 
court  it  is  evident  that  the  court  took  a  dif- 
ferent view  of  the  law,  and  we  must  hold 
that  error  was  committed  in  using  and  ap- 
plying the  word  "natural"  to  qualify  the  ac- 
cretions to  which  plaintiff  would  be  entitled. 
3.    The   evidence   showed    very   conclusive- 


ly that  Duncan's  Island  formed  in  the  midst 
of  the  river  manj'  years  ago,  and  for  a 
time  the  navigable  part  of  the  river  was  be- 
tween it  and  the  main  shore.  The  evi- 
dence also  has  some  tendency  to  prove  that 
the  land  now  in  dispute  constituted  a  por- 
tion of  the  island,  or  was  accretion  to  the 
island,  rather  than  to  the  shore.  If,  on  a 
new  trial,  eitlier  proposition  should  be 
proven  true,  then  plaintiff  could  have  no 
claim  to  it  as  accretion.  These  principles 
are  well  settled  in  this  state.  Benson  v. 
Morrow,  61  Mo.  347;  Buse  v.  Russell,  S6  Mo. 
211;  Naylor  v.  Cox,  114  Mo.  232,  21  S.  W. 
589;  Rees  v.  McDaniel,  115  Mo.  145,  21  S.  W. 
913;  Cooley  v.  Golden,  117  Mo.  48,  23  S.  W. 
100. 

4.  Was  the  judgment  for  the  right  party, 
regardless  of  the  error  committed?  Defend- 
ant, on  the  trial,  read  in  evidence  a  paper  sign- 
ed bylMr.and  Mrs.  Lynch,  dated  in  1851,  which 
by  its  terms  gave,  granted,  and  conveyed 
to  the  city  of  St.  Louis  the  right  to  open  cer- 
tain named  streets,  and  authorized  the  said 
city  to  locate  and  construct,  on  dry  land 
held  or  claimed  by  them,  a  wharf  265  feet 
wide,  according  to  designation  on  accom- 
panying map,  "to  have  and  to  hold  the  same, 
as  the  same  is  established  in  Ordinance  No. 
2596,  for  the  use  of  a  wharf,  to  be  under  the 
entire  control  and  management  of  said  city." 
This  paper  was  duly  signed  by  both  Mr.  and 
'Sirs.  Lynch,  but  was  not  sealed  or  acknowl- 
edged by  either  of  them.  By  Ordinance  No. 
2.596,  approved  March  29,  1851.  a  wharf  from 
Plum  street  to  the  southern  limits  of  the 
city  was  established.  This  wharf,  as  de- 
scribed in  the  writing  and  ordinance,  would 
include  a  portion  of  the  land  in  dispute. 
The  written  instrunient,  not  having  been 
acknowledged  by  Mrs.  Lynch,  is  void  as  a 
release  or  dedication  by  her.  The  statute  in 
force  at  that  time  gave  her  no  power  to  con- 
vey her  interest  in  land  the  legal  estate  of 
which  she  held,  except  by  deed  duly  ac- 
knowledged. Hoskinson  v.  Adkins.  77  Mo. 
538.  Whether  the  instrument  would  oper- 
ate as  a  license,  as  claimed,  need  not  be  con- 
sidered, as  it  does  not  appear  that  the  city 
has  ever  taken  possession  under  it,  and  im- 
proved the  property  as  a  wharf.  After  40 
years  of  nouuse  we  may  reasonably  assume 
that  the  license,  if  one  was  given,  has  been 
revoked.  Indeed,  since  the  date  of  the  al- 
leged license  it  very  conclusively  appears 
from  the  evidence  that  plaintiff  has  made 
sucli  use  of  the  property  as  implies  a  revoca- 
tion thereof.  The  evidence  shows  quite 
conclusively  that  the  property  was  leased  by 
plaintiff  for  a  number  of  years  subseiiuent 
to  1851,  and  was  used  by  the  lessee  in  a  man- 
ner inconsistent  with  its  use  by  the  city  as 
a  wharf.  The  case  of  Moses  v.  Dock  Co., 
84  Mo.  244,  is  cited  by  counsel  for  defendant 
as  sustaining  his  position  that  the  instru- 
ment would  operate  as  a  license.  It  will  be 
seen  that,  though  in  that  case  the  same  in- 
strument was  under  review,  it  was  legally 


294 


TITLE. 


executed  by  the  parties  therein  interested, 
and  it  was  held  that,  inasmuch  as  the  city- 
took  the  undisputed  possession  of  the  prop- 
erty, through  its  lessees,  there  was  a  com- 
plete dedication.  It  was  also  declared  as  a 
fact,  deduced  from  the  evidence  in  that  case, 
that  "the  property  had  at  all  times  since 
1859  been  treated  by  all  parties  as  a  part  of 
the  wharf."  There  was  no  question  in  re- 
spect to  an  executory  and  unused  license  in 
that  case.  "A  mere  license  may  exist  by 
parol,  and  ordinarily  is  not  assignable,  and 
is  revocable  unless  it  has  been  executed,  and 
the  party  has  incurred  expense  on  the  faith 
of  it,  so  that  he  would  be  injured  by  the 
revocation  of  it."  Baker  v.  Railroad  Co.,  57 
Mo.  272,  and  cases  cited. 

5.  It  appears  from  the  evidence  that  in 
1855,  in  a  proceeding  for  partition,  that  part 
of  lot  4  lying  between  Columbus  street  and 
Front  street  was  subdivided  by  commission- 
ers into  lots  and  streets.  Front  street  was 
at  the  time  the  west  boundary  of  the  orig- 
inal city  wharf.  In  1859,  Lynch  and  wife 
conveyed  to  Thomas  Marshall  certain  lots 
assigned  to  them  by  the  commissioners, 
which  abutted  on  Front  street.  It  is  insisted 
now  that  this  conveyance  carried  the  title 
of  the  grantee  to  the  river  bank,  and  includ- 
ed the  land  in  question,  and  therefore  an 
outstanding  title  was  shown  to  be  in  Mar- 
shall.   A  plat  of  the  subdivision  was  filed  by 


the  commissioners  with  their  report.  This 
plat  showed  Front  street  as  having  a  width 
of  140  feet,  and  a  wharf  adjoining  and  next 
the  river,  having  a  width  of  125  feet.  The 
certificate  of  the  commissioners  written  up- 
on the  plat  declares  that  Front  street  and 
the  wharf  "are  opened  for  the  sole  and  spe- 
cial use  and  benefit  of  the  owners  of  the  sev- 
eral lots  fronting  thereon,  and  are  not  de- 
clared or  set  apart  as  public  highways,  or 
for  public  use."  The  land  in  suit  is  included 
in  the  wharf  as  shown  by  the  plat.  A  sale 
to  Marshall  was  of  designated  lots.  The 
eastern  boundary  of  these  lots  was  Front 
street,  and  the  title  of  Marshall  under  liis 
deed  did  not  extend  beyond  this  boundary. 
Ellinger  v.  Railway  Co.,  112  Mo.  526,  20  S. 
W.  SOO;  City  of  St.  Louis  v.  Missouri  Pac. 
Ry.  Co.,  114  Mo.  22,  21  S.  W.  202,  and  cases 
cited.  Marshall,  as  the  owner  of  these  lots, 
has  a  mere  easement  in  Front  street  and  the 
wharf,  but  this  right  is  no  bar  to  an  action 
of  ejectment  against  a  stranger.  City  of  St. 
Louis  V.  Missouri  Pac.  Ry.  Co.,  supra. 

The  question  of  adverse  possession  was  not 
passed  upon  by  the  trial  court,  and  we  will 
not  consider  it  here  further  than  to  say  that 
the  evidence  did  not  show,  as  a  matter  of 
law,  that  defendant  had  been  in  possession 
of  the  land  for  a  period  sufficient  to  bar  the 
action.  Reversed  and  remanded.  All  con- 
cur. 


TITLE  BY  ACCKETION. 


295 


rniCE  et  al.  V.  HALLETT. 
(38  S.  W.  451.) 
Supreme  Court  of  Missouri,  Division  No.  2. 
Dec.  23,   1896. 

Appeal  from  circuit  court,  Chariton  coun- 
ty; O.  F.  Smith,  Special  Judge. 

Ejectment  by  Emma  Price  and  others 
against  Daniel  Hallett.  There  was  judg- 
ment for  defendant,  and  plaintiffs  appeal. 
Afhrmed. 

This  record  presents  another  case  growing 
out  of  the  erratic  action  of  the  Missouri 
river.  The  land  in  controversy  is  claimed  to 
be  a  part  of  a  large  tract  which  originally 
was  attached  to  Saline  county,  on  the  south 
side  of  the  river,  but,  by  the  action  of  the 
currents,  has  been  transferred  to  the  north 
banli,  and  attached  to  Chariton  county.  The 
process    of    U'an^sfer,    plaiuiiff's    claim,     was 


complete  in  18SG.  The  particular  portion  of 
said  land  forming  the  basis  of  this  action  is 
the  N.  Vi  of  the  N.  1/2  of  the  S.  W.  14  of 
section  No.  25,  township  53,  range  20.  If 
plaintiffs  are  riglit  in  their  contention,  this 
land  was  originally  a  part  of  "Horseshoe 
Bend,"  near  New  Frankfort,  in  Saline  coun- 
ty, between  Glasgow  and  Brunswick.  This 
bend  included  in  the  government  survey 
parts  of  sections  23,  24,  25,  and  26,  range  20. 
The  E.  14  of  section  25  was  bounded  by  llie 
river,  and  was  fractional.  The  W.  Ya  was 
full.  A  plat  of  the  original  survey  accom- 
panies this  opinion. 

The  evidence  of  plaintiffs  tended  to  prove 
that  the  river  began  cutting  away  all  the 
land  on  the  west  side  of  this  bend  many 
years  ago,  and  in  18G9  had  cut  away  all  of 
fractional  section  2(!,  and  a  large  part  of  the 
W.  14  of  section  25.      In  that  year,  the  evi- 


! J 


PrESCnt  CliAf^nigk    /7o.^"'<ft 


Neill  cabin  is  28  chains  and  63  links  west,  and  3  chains  and  63  links 
Bouth  of,  centre  of  section  25  T.  53  K.  20;  and  in  N.  W.  3^  of  S.  VV,  3^ 
of  said  section  25. 

Nunn  dwelling  is  300  links  north  of  line  throusrh  centre  of  section 
25  T.  53  R.  20.  Nunn  dwelling  is  the  S.  W.  }{  of  the  N.  W.  }{  of  said 
section  25,  and  very  close  to  the  east  line  thereof. 


^96 


TITLE. 


dence  tends  to  show,  one  John  Cassabeer 
^'as  in  possession  of  and  claimed  to  own 
the  remaining  part  of  the  N.  %  of  the  N. 
1/2  of  the  S.  W.  ^  of  section  25.  On  the  1st 
day  of  September,  18G9,  Cassabeer  and  wife, 
by  warranty  deed,  conveyed  said  last-named 
tract  to  Frederick  Abrogast.  Abrogast  was 
already  in  possession  of  and  claimed  to  own 
the  fractional  E.  i/^  of  section  25,  and  some 
other  tracts.  He  had  a  farm,  with  dwelling 
house  and  other  farm  buildings,  and  had  a 
portion  of  It  in  cultivation.  He  continued 
in  possession  by  himself  and  tenants  until 
the  most  of  his  farm,  including  the  20  acres 
purchased  of  Cassabeer,  was  washed  away 
by  the  river.  Some  time  prior  to  1878  the 
river  had  complotelj^  submerged  the  Cassa- 
beer tract  and  all  of  the  Abrogast  farm,  save 
about  30  acres,  and  a  small  strip  of  the 
original  Horseshoe  Bend.  About  this  time 
the  river  cut  through  the  bend  on  its  south 
or  Saline  county  side,  .and  thereupon  sand 
bars  began  to  form  anew  the  bend  on  its 
west  side.  For  some  time,  however,  a  chan- 
nel of  the  river  ran  around  the  north  end  of 
the  bend;  but  gradually  a  large  tract  had 
formed  to  the  west,  and  adjoining  the  bend, 
and  the  river  ceased  altogether  to  flow  be- 
tween the  bend  and  the  Chariton  county 
shore.  These  alluvial  formations  soon  be- 
came valuable  cultivating  land.  The  defend- 
ant and  others  squatted  on  these  newly-made 
lands,  and  their  claim  thereto  is  based  en- 
tirely on  adverse  possession,  without  paper 
title  thereto.  During  the  time -Abrogast  was 
in  possession,  to  wit,  on  the  12th  day  of  Feb- 
ruary, 1873,  he  executed  a  mortgage  convey- 
ing said  farm,  including  the  Cassabeer  tract 
or  land  in  suit,  to  Saline  county,  to  secure 
$1,000  borrowed  from  said  county,  and  stipu- 
lated therein  "that  should  default  be  made 
in  the  payment  of  the  principal  and  interest, 
or  any  part  thereof,  at  any  time,  it  should  all 
become  due  and  payable  according  to  the 
tenor  and  effect  of  the  bond  thereby  secured,' 
and  the  sheriff  of  Saline  county  was  author- 
ized, without  suit,  to  proceed  to  sell  the 
said  mortgaged  premises  to  satisfy  said  debt 
and  interest  thereon."  Abrogast  made  de- 
fault, and  thereupon,  on  the  4th  day  of  Sep- 
tember, 1888,  the  county  court  of  Saline 
county,  by  its  order  of  record,  found  that 
said  Abi-ogast  was  indebted  to  said  county, 
for  the  use  of  said  school  funds,  in  the  sum 
of  $859.60,  and  that  default  had  been  made, 
and  thereupon  ordered  that  judgment  be  en- 
tered for  said  sum  against  Abrogast  and  his 
sureties,  and  made  its  order  of  sale  of  said 
property  in  said  mortgage  described  to  satis- 
fy the  sureties;  and  thereafter  said  order  and 
Judgment  were  duly  certified  to  the  sheriff 
of  Saline  county  by  the  clerk  of  said  court, 
and  were  delivered  to  said  sheriff  on  the  6th 
day  of  September,  1888,  commanding  him  to 
levy  the  same  on  said  real  estate,  and  to  sell 
the  same  according  to  law,  to  satisfy  said 
debt,  interest,  and  costs;  and  thereupon  said 
sheriff    gave   20    daj^s'    notice   of    the   time. 


terms,  and  place  of  sale  and  the  real  estate 
to  be  sold,  in  a  newspaper  published  in 
Saline  county;  and  in  pursuance  thereof,  on 
the  19th  day  of  October,  1891,  by  virtue  of 
said  execution  and  notice,  sold  said  real  es- 
tate at  public  vendue  to  the  highest  bidder, 
at  the  courthouse  door  in  the  city  of  Mar- 
shall, in  said  Saline  county,  during  the  ses- 
sion of  the  circuit  court,  and  at  said  sale 
Alfred  Rector  became  and  was  the  highest 
and  best  bidder  therefor,  and  the  same  was 
struck  off  and  sold  to  him;  and  thereupon, 
said  Rector  having  paid  said  bid,  the  sheriff 
executed,  acknowledged,  and  delivered  his 
sheriff's  deed  to  said  Rector.  Afterwards 
said  Rector  sold  and  conveyed  said  real  es- 
tate to  Sterling  Price,  the  husband  of  Emma 
Price,  the  plaintiff,  and  father  of  the  other 
minor  plaintiffs.  On  the  2d  day  of  January, 
iS'JO,  and  during  his  lifetime.  Price  sold  ana 
conveyed  one  undivided  fourth  of  said  lands 
to  plaintiff  L.  Benecke.  The  evidence  tended 
to  prove  that  Price  took  possession  of  the 
original  Abrogast  land  thus  acquired  by  him, 
had  part  of  it  cultivated,  and  pastured  a 
part  thereof,  and  continued  in  possession  un- 
til the  present  controversy  arose.  After  the 
land  that  had  formed  west  of  where  the  bend 
once  was  had  become  fit  for  cultivation,  a 
number  of  persons  settled  upon  different 
parts  of  it,  principally  north  and  west  of  the 
Abrogast  land.  These  parties  seem  to  have 
squatted  upon  the  land,  and  made  claims  to 
it,  without  regard  to  section  or  other  prior 
lines,  but  cut  out  their  lines  through  the 
willows  by  common  agreement  among  them- 
selves. The  defendant  in  this  case  bouglit 
the  possession  and  right  of  one  of  these 
squatters,  and,  while  he  has  pleaded  no  es- 
toppel in  pais,  much  evidence  was  heard  in 
his  behalf  to  establish  such  an  estoppel 
against  the  plaintiff  Benecke  as  to  his  claim 
for  the  undivided  one-fourth.  These  squat- 
ters employed  Mr.  Carter,  the  county  sur- 
veyor of  Chariton  county,  to  survey  these 
lands  for  them,  which  he  testifies  he  did 
from  the  original  field  notes,  locating  the 
land  in  Saline  county.  Neither  Price  nor  his 
wife  or  children  had  anything  to  do  with 
this  survey,  or  any  of  the  agreements  of 
these  squatters.  The  evidence  tends  to  show 
that  Frank  Nunn  was  one  of  these  original 
squatters,  and  his  claim  fell  on  the  extreme 
eastern  side  of  these  newly-made  lands, 
where  the  survey  closed.  Nunn  sold  to  Hal- 
lett,  the  defendant  in  this  case,  and  showed 
him  160  acres,  of  which  Nunn  claimed  to 
own  three-fourths,  and  Benecke  one-fourth, 
which  he  said  Benecke  was  to  have  for  serv- 
ices to  the  squatters.  Prior  to  the  delivery 
of  Nunn's  deed  to  Hallett,  a  controversy 
arose  about  the  description  of  the  land. 
Nunn  and  Hallett  went  to  Brunswick,  to 
have  Benecke  write  the  deed;  but,  Benecke 
being  absent,  they  went  to  Messrs.  Ham- 
mond &  Son,  and  undertook  to  give  the  de- 
scription. This  deed  was  left  in  Messrs. 
Hammonds'  office,  for  Mr.  Nunn  to  sign.    Be- 


TITLE  BY  ACCRETIOX. 


297 


fore  it  was  signed,  a  mistake  was  discovered 
an  it;  and,  at  their  request,  Beneclie  pre- 
pared another  deed,  from  a  description  pre- 
pared by  the  surveyor  Carter,  calling  for  44 
acres.  This  deed  was  executed  October  16, 
1890,  and  was  left  with  Boneclie  to  be  re- 
corded. Several  months  after  the  prepara- 
tion of  the  deed,  Nunn  and  Hallett  went  to 
Benoclce's  ofhce  to  get  the  deed,  and  Hallett 
was  then  to  pay  for  it.  At  that  time,  Hallett 
and  Nunn  claimed  this  deed  had  been  chan- 
ged since  its  execution  so  as  to  convey  a 
less  number  of  acres  than  as  originally  wi'it- 
ten.  Bcuecke  denied  that  any  such  change 
had  been  made.  Hallett  took  this  deed,  con- 
veying three-fourths  of  44  acres,  and  says 
they  had  another  deed  prepared,  but  the 
only  other  deed  in  evidence  is  one  executed 
by  Nunn  to  Hallett,  September  21,  1891,  aft- 
er this  litigation  had  been  commenced. 
Nunn,  however,  placed  Hallett  in  possession 
under  his  purchase.  The  evidence  also  dis- 
closes that  in  the  spring  of  1888  one  Neal 
settled  on  a  part  of  this  newly-made  land, 
and  built  a  cabin  on  the  tract  now  in  con- 
troversy. There  is  a  conflict  as  to  how  he 
was  there,  whether  in  his  own  right  or  un- 
der Nunn.  He  claimed  to  be  in  his  own 
right,  and,  after  raising  a  crop,  sold  his  cabin 
and  claim  to  Price  and  Benecke,  and  made 
them  a  deed.  In  the  spring  of  1891,  Price 
and  Benecke  leased  the  S.  W.  14  of  section 
•25,  township  53,  range  20,  which  includes 
the  land  in  suit  and  the  Neal  cabin,  to  Jenk- 
ins and  Sullivan,  by  written  lease,  of  date 
February  14,  1891.  Jenkins  and  Sullivan  re- 
paired the  Neal  cabin,  and  moved  into  it. 
About  this  time,  defendant  Hallett  moved 
to  the  Nunn  tract.  Hallett  got  possession  of 
the  cabin  from  Jenkins  and  Sullivan,  and 
Price  and  Benecke  began  a  suit  of  forcible 
entry  and  detainer.  That  suit  was  sent  to 
the  circuit  court  of  Chariton  county,  and, 
by  change  of  venue,  was  sent  to  the  circuit 
coui't  of  Callaway  county,  and  was  still  pend- 
ing when  this  case  was  tried,  in  Chariton 
county.  Sterling  Price  died  after  the  trial 
of  the  forcible  entry  case  before  the  justice 
of  the  peace.  This  action  of  ejectment  was 
commenced  by  his  heirs  and  L.  Benecke 
against  Hallett,  was  tried  in  1893,  and  re- 
sulted in  a  judgment  for  defendant  from 
which  plaintiffs  appeal.  The  jurj^  having 
found  the  issue  of  fact  for  defendant,  the 
appellants  insist  that  their  verdict  was  in- 
duced by  erroneous  and  contradictor}^  in- 
structions. The  propriety  of  the  verdict 
must  be  determined  by  an  examination  and 
comparison  of  these  declarations  of  law. 

A.  W.  Mullins,  L.  Benecke,  and  C.  Ham- 
mond &  Son,  for  appellants.  Tyson  S.  Dines 
and  Crawley  &  Son,  for  respondent. 

GANTT,  P.  J.  (after  stating  the  facts).  1. 
The  first  assignment  is  that  the  first  instruction 
for  defendant  is  wrong  and  misleading,  in  that 
it  instructs  the  jury  that  plaintiffs  failed  to 


show  any  title  whatever  to  the  land  in  contro- 
versy, and  is  in  conflict  with  plaintiffs'  second 
instruction.  Said  instruction  numbered  1, 
for  defendant,  was  in  these  words:  "The  court 
instructs  the  jury  that  it  appears  from  the 
evidence  in  the  case  that  the  patent  for  the 
north  half  of  the  southwest  quarter  of  sec- 
tion 2.5,  township  53,  range  20,  in  Saline  coun- 
ty, Missouri,  was  issued  by  the  government 
of  the  United  States  to  one  Jonathan  Millsap.s, 
and  that  plaintiffs  in  this  case  have  entirely 
failed  to  show  that  the  title  so  granted  by 
the  government  to  said  Millsaps  was  ever  con- 
veyed to  the  plaintiffs,  or  any  of  them,  or  to 
any  person  under  or  through  whom  said 
plaintiffs  claim."  The  second  instruction  fur 
plaintiffs  was  as  follows:  "If  the  jury  find 
from  the  evidence  that  the  tract  of  land  in 
controversy,  to  wit,  th6  north  half  of  the 
north  half  of  the  southwest  quarter  of  sec- 
tion 25,  township  53,  range  20,  was  conveyed 
to  Fred  Abrogast,  in  the  year  lSiJ9,  by  John 
Cassabeer,  and  that  said  tract  became  and 
was  part  of  an  entire  tract  of  land  known 
as  the  Abrogast  Farm,'  and  described  as  the 
southeast  fractional  quarter,  the  southeast 
quarter  of  the  northwest  quarter  of  section 
2.5,  township  53,  range  20,  and  that  said 
Abrogast,  by  himself  and  his  tenants,  wns 
in  the  actual  possession  of  said  farm,  claim- 
mg  and  holding  the  same  as  his  own,  ad- 
versely to  all  other  claimants,  and  continued 
in  the  actual,  open,  notorious  po.sscssion  of 
the  same  for  ten  years  after  the  date  of  said 
conveyance  by  said  John  Cassabeer,  then  the 
title  became  vested  absolutely  in  said  Abro- 
gast; and  if  the  jury  further  find  from  the 
evidence  that,  by  the  encroachments  of  the 
Missouri  river  upon  said  land,  described 
above  as  the  'Abrogast  Farm,'  while  it  was 
held  and  owned  by  said  Abrogast  or  his 
grantees,  a  portion  of  said  land,  formerly  in- 
cluding the  land  in  controversy,  was  washed 
away,  but  that  a  portion  of  said  farm  re- 
mains unaffected  by  the  action  of  the  watei*s 
of  said  river,  and  that  afterwards,  by  the 
natural  action  of  the  waters  of  said  river, 
the  land  in  controversy  has  been  reforai!  d 
as  originally  locat'?d,  and  also  has  been  de^ 
posited  at  and  against  the  Abrogast  laud  re- 
maining, and  not  washed  away  by  tlie  river, 
then  said  Abrogast  and  his  grantees  became 
and  are  the  owners  of  said  land."  We  are 
not  able  to  concur  in  either  of  the  criticisms 
of  the  first  instruction  given  for  defendant. 
In  our  judgment,  it  simply  tells  the  jury 
that  the  plaintiffs  failed  to  deduce  a  paper 
title  to  the  land  from  the  original  patentee, 
Millsaps;  and  it  was  a  fact  that  they  had 
failed  in  so  doing.  It  nowhere  tells  them 
that  plaintiff's  might  not  have  acquired  a  title 
thereto  by  purchasing  the  possessory  right, 
which  had  ripened  into  a  title  in  Abrogast. 
Had  the  two  instructions  been  connected  with 
the  disjunctive  "but,"  any  supposed  incon- 
sistency would  have  vanished  at  a  glance. 
Taken  together,  the  court  simply  insti-ucted 
the  jury  that  plaintiffs  had  not  shown  a  paper 


298 


TITLE. 


title  through  Millsaps,  the  original  patentee, 
but  that  was  not  essential  to  their  recover^-, 
if  they  found  that  Abrogast  entered  the  land 
under  claim  of  title,  through  his  deed  from 
Cassabeer,  and  had  held  the  open,  notorious, 
advei-se  possession  thereof  for  10  years;  that 
such  possession  would  authoi'ize  them  to  re- 
cover. 

2.  It  is  next  urged  that  there  is  no  evi- 
dence whatever  upon  which  to  base  defend- 
ant's second  instruction,  which  was  in  these 
words:  "Before  plaintiffs  can  recover  upon 
the  ground  of  a  prior  possession  of  the  laud 
sued  for,  or  any  pai't  of  said  land,  plaintiffs 
must  not  only  prove  the  fact  of  such  prior 
possession,  but  must  also  prove  to  your  satis- 
faction that  such  prior  possession  was  exclu- 
sive and  adverse  to  the  possession  relied  upon 
by  the  defendant  in  this  case;  and,  if  you 
believe  that  such  prior  possession  relied  upon 
by  plaintiffs  was  not  exclusive  and  adverse 
to  the  defendant,  and  those  under  whom  he 
claims,  then  such  prior  possession  of  plain- 
tiffs cuts  no  figure  in  this  case,  and  you  must 
find  for  the  defendant."  It  is  objected  that 
there  was  no  evidence  upon  which  to  base 
this  instruction,  but  it  seems  to  us  that  this 
is  a  misconception  of  its  purpose.  Is  it  not, 
rather,  a  declaration  of  what  facts  plaintiffs 
were  bound  to  prove  in  order  to  recover, 
rather  than  any  assumption  of  what  defend- 
ant had  shown?  Defendant  unquestionably 
had  a  possession  for  several  years,  and  the 
burden,  in  the  very  nature  of  the  case,  was 
upon  plaintiffs,  in  the  absence  of  a  paper 
title,  to  show  title  by  possession  of  the  speci- 
fic tract  in  suit.  We  can  discover  no  legal 
objection  to  this  instruction. 

3.  The  third  instruction  for  defendant  is  al- 
so challenged.  It  is  as  follows:  "If,  from  the 
evidence,  you  believe  that  on  the  10th  day  of 
September,  1800,  the  defendant  Daniel  Hal- 
lett  and  one  Frank  Nimn  concluded  negotia- 
tions whereby  said  Nunn  agreed  to  convey  to 
Hallett  120  acres  of  land,  including  the  land 
in  controversy,  at  the  agreed  price  of  $275;  and 
that  said  120  acres  was  part  of  the  160  acres, 
of  which  plaintiff  Louis  Benecke  owned  at 
that  time  an  undivided  one-fourth;  and  if  you 
further  find  that  said  parties  imdertook  to  carry 
out  said  agreement,  and  to  consummate  said 
sale  and  conveyance  on  that  day,  with  the 
knowledge  and  acquiescence  of  plaintiff  ^Louis 
Benecke;  and  that  it  was  the  intention  and 
purpose  of  said  Frank  Nunn  to  convey  all  his 
interest  and  claim  in  and  to  said  120  acres  to 
said  Hallett  by  the  deed  that  day  written  by 
plaintiff  Louis  Benecke;  and  that  said  Benecke 
knew  and  acquiesced  in  the  said  intended  con- 
veyance; and  that  said  Hallett  paid  $275,  and 
accepted  the  deed  so  ^Titten,  believing  at  the 
time  that  it  did,  in  fact,  convey  all  of  Nunn's 
interest  in  and  to  the  120  acres  of  land;  and  if 
you  further  believe  that  said  Hallett  after- 
wards took  possession  of  said  120  acres  of  land 
under  his  said  purchase  from  Nunn,  and  contin- 
ued in  possession  thereof  until  the  commence- 
ment of  this  suit,— then  the  court  declares  the 


law  to  be  that  said  Louis  Benecke  is  estopped 
and   precluded  from   maintaining   this    action 
against  p"iJ  Hallett,  no  matter  whether  the 
deed  written  by  him  for  Frank  Nunn  on  said 
10th    day   of    September,    1803,    actually   and 
correctly  described  said  land  or  not."    The  the- 
ory of  this  instruction  is  that  Benecke,  one  of 
plaintiffs,   is  estopped.    The  objection  is  now 
made   that   this   instraction   should    not   have 
been  given,  because  no  such  estoppel  in  pais 
was  pleaded.    It  has  often  been  decided  by  this 
court  that  estoppel  in  pais  must  be  pleaded. 
Bray  v.  Marshall,  75  Mo.  .327;  Noble  v.  Blount, 
77  Mo.  235;  Aveiy  v.  Railroad  Co.,   113  Mo. 
561,  21  S.  W.  90.    It  was  so  held  on  an  objec- 
tion to  testimony  in  Bray  v.  Marshall,  supra. 
In   Noble   v.   Blount   it   was   said   there   was 
neither  a  pleading  nor  evidence  to  justify  such 
an  instruction.    It  seems  to  us  this  doctrine  has 
ptculiar  weight  when  invoked  against  the  ad- 
missibility of  evidence  when  no  issue  of  estop- 
pel has  been  tendered  in  the  pleadings,  or  when 
an  estoppel  in  pais  is  urged  for  the  first  time 
in  this  court;  but  where  parties  have  permit- 
ted an  issue  of  this  kind  to  be  raised  by  the 
evidence  without  objection,  and  have  had  full 
opportunity  to  try  the  issue,  we  are  unable  to 
draw  a  distinction  between  such  a  case  and 
those  cases  in  this  state  in  which  parties  have 
neglected  to  file  replies;  and   this   court  has 
held  that  it  was  too  late,  after  trying  the  case 
as  if  a  reply  had  been  filed,  to  claim  that  the 
answer  was  admitted.    Had  a  timely  objection 
l>een  made  when  this  evidence  tending  to  show 
an  estoppel  was  offered  as  against  Mr.  Ben- 
ecke, it  would  have  been  excluded,  or  tlie  court 
would  have  permitted  an  amendment  pleading 
sut-h  estoppel;  but  no  such  objection  appears 
to  have  been  made  at  that  time,  and  now  that 
the  evidence  has  been  heard,  and  the  instruc- 
tion given  upon  it,  we  think  it  is  too  late  to 
raise  the  question  of  pleading  on  that  point. 
We  sh.all  treat  the  record  now  as  if  the  amend- 
ment had  been  prayed  and  permitted.    Baker 
v.  Railway  Co.,  122  Mo.  533,  26  S.  W.  20;  Dar- 
ner V.  Dan-ier,  58  Mo.  222.    It  has  been  held 
in  New  York,  vmder  the  Code,  that,  where  an, 
amendment  to  a  pleading  might  have  been  or- 
dered by  the  court  on  trial,   it  may  even  be 
amended  on  appeal,  so  as  to  conform  to  the 
proofs.    Hudson  v.   Swan,  7  Abb.  N.  C.  324; 
Bate  V.  Graham,  11  N.  Y.  237. 

Was  there  substantial  evidence  tending  to 
prove  an  estoppel  against  plaintiff  Benecke? 
We  think  there  was.  Of  course,  its  credibility 
was  for  the  jury;  but,  if  credited  by  them,  it 
tends  strongly  to  show  that  Mr.  Benecke  was 
silent  when  he  should  have  spoken.  If  Nunn 
and  Hallett  are  to  be  believed,  they  went  to 
Mr.  Beneclce,  to  draw  the  deed  from  Nunn  to 
Hallett;  that  Nunn  said  Benecke  was  to  re- 
ceive an  undivided  one-fourth  for  his  fee  for 
sustaining  their  title,  and  that  the  deed  was 
to  convey  160  acres  of  land,  and  Benecke  agreed 
to  take  the  "L"  40  of  the  tract,  and  offered  to 
sell  his  share  that  day  to  Hallett;  that  he  made 
no  claim  of  title  or  ownership  from  any  other 
source;  and  that  they  ti-aded  with  this  under- 


TITLE  BY  ACCRETION. 


299 


standing.  Even  if  these  semiamphibious  squat- 
ters, who  wore  evidently  illiterate,  were  mis- 
taken about  the  number  of  acres  described  by 
the  deed,  still  there  was  no  claim  by  Benecke 
of  a  title  other  than  that  he  was  to  receive 
from  these  same  squatters  for  serving  them. 
Surely,  he  cannot  be  heard,  after  remaining 
silent,  without  asserting  a  claim  at  that  time, 
now  to  urge  another  claim  which  he  then  had. 
We  do  not  think  the  coiu-t  en'ed  in  giving  the 
Instruction  on  estopix^l. 

4.  Finally,  it  is  urged  that  all  the  evidence 
went  to  show  this  was  the  Abrogast  land. 
Whether  this  land  was  the  N.  i^  of  the  N. 
Vs  of  the  S.  W.  Vi  of  section  25,  township  53, 
range  20,  was  a  question  of  fact.  The  sur- 
veyor of  Chariton  county  undertook  to  survey 
it  as  a  part  of  Chariton  county,  according  to 
Saline  county  surveys.  According  to  the  Chari- 
lon  county  sui-vey,  there  is  now  land  corre- 
sponding to  the  description  given  in  the  peti- 
tion. There  was  no  such  section  as  section  25, 
township  53,  range  20,  on  the  norlii  side  of  the 
river.  The  siu*veyor  of  Chariton  coimty  says 
the  government  never  surveyed  the  bed  of  the 
river.  He  says  this  land  is  evidently  all 
"made  land."  It  shows  plainly  that  the  river 
once  ran  where  it  now  is.    Now,  if  plaintiffs 


had  title  to  this  land,  which  all  the  evidence 
shows  \\'as  onc-e  entirely  wa.shed  away,  and 
the  river  ran  where  the  land  now  is,  it  vested 
In  them  solely  as  an  accretion  to  tliat  portion 
of  the  Abrogast  farm  which  never  washed 
away.  Unless  it  was  formed  to  such  tract  as 
an  accretion,  plaintiffs  have  no  title  thereto. 
The  mere  fact  that  it  now  forms  a  tract  within 
lines  that  once  inclosed  the  original  Cassabeer 
tract  will  not  give  title.  Hahn  v.  Dawson 
(Mo.  Sup.)  3G  S.  W.  233. 

The  question  of  accretion  was  submitted  to 
the  jury  in  a  most  favorable  instruction,  and 
the  jury  found  against  plaintiffs,  and  the  cir- 
cuit court  approved  the  finding.  We  cannot 
say  that  there  was  such  a  clear  case  of  ac- 
cretion that  the  verdict  was  against  the  evi- 
ilence.  Whether  this  land  was  first  formed  as 
a  sand  bar,  and,  by  receding  waters,  became 
attached,  or  whether  it  was  formed  by  gradual 
accretion,  we  confess,  is  by  no  means  clear  to 
us.  Whether  It  first  formed  to  the  Chariton 
shore,  or  to  the  remnant  of  the  old  bend,  we 
think,  is  very  uncertain,  and  hence  we  accept 
ihe  verdict  of  the  jmy. 

The  judgment  is  affirmed, 

BURGESS  and  SHERWOOD,  J  J.,  concur. 


300 


TITLE. 


IVES  V.  ALEYN. 

(13  Vt.  C529.) 

Supreme  Court  of  Vermont.     Orleans.    March, 
1841. 

Ejectment,  to  recover  the  seizin  and  posses- 
sion of  lot  No.  68,  in  Charleston.  Plea,  not 
guilty,  and  issue  to  the  country.  Or  the  trial 
in  the  county  court,  the  plaintiff,  to  show  title 
in  his  grantor  to  the  land  in  question,  offered 
in  evidence  certified  copies  of  the  last  wills 
and  testaments  of  Christopher  Olney  and  Sally 
Ann  Olney.  It  appeared  that  the  original  wills 
were  duly  proved,  approved  and  allowed  in  the 
municipal  court  of  the  city  of  Providence,  in 
the  state  of  Rhode  Island,  (a  court  having  pro- 
bate jurisdiction)  and  that  copies  thereof,  duly 
certified,  after  due  notice  had  been  given,  were 
filed  and  recorded  in  the  probate  court  for  the 
district  of  Orleans,  (in  which  district  the  land 
in  question  lies.)  on  the  22d  day  of  June,  1840, 
agreeably  to  the  statute  of  this  state.  The 
present  action  was  commenced  previous  to  the 
tiling  and  recording  of  said  copies  in  the  pro- 
bate court  for  the  distpict  of  Orleans.  The  de- 
fendant objected  to  the  admission  of  said  cop- 
ies, but  the  county  court  overruled  the  objec- 
tion, and  they  were  read  to  the  jury.  The 
plaintiff  also  read  in  evidence  a  deed  from  Wm. 
C.  Bowen,  heir  to  the  devisee  of  Sally  Ann  Ol- 
ney, conveying  all  the  said  Bowen's  lands  in 
Vermont  to  the  plaintiff,  which  was  objected 
to  by  the  defendant,  but  admitted  by  the  court. 
The  plaintiff  also  offered  the  deposition  of 
Mary  Olney,  to  which  the  defendant  objected; 
but  the  objection  was  overruled  and  the 
deposition  admitted.  *The  jury  returned  *630 
a  verdict  for  the  plaintiff,  and  the  de- 
fendant excepted.  The  only  question  in  this 
case  decided  by  this  court,  at  the  present  term, 
related  to  the  filing  and  recording  of  the  copies 
of  said  vfills  in  the  probate  court  for  the  dis- 
trict of  Orleans.  It  therefore  becomes  unnec- 
essary to  state  the  substance  of  said  wills,  and 
other  papers  made  parts  of  the  case.  This  case 
was  before  this  court  at  the  last  term,  and  in 
the  report  of  the  case,  as  then  decided,  (see  13 


Vt.  R.  589,)  the  substance  of  said  wills,  deed 
and  deposition  are  fully  stated.  A  question 
was  made  whether  the  lands  devised  by  Chris- 
topher and  Sally  Ann  Olney  included  the  land 
sought  to  be  recovered  in  this  action.  That 
question,  having  been  passed  upon  by  the  jury, 
was  not  considered  suljject  to  revision  in  this 
court. 

J.  Cooper,  argued  for  defendant,  and 

E.  Paddock,  for  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

REDFIELD,  J.  No  questions  are  reserved  in 
this  case  except  those  which  arise  upon  the 
face  of  the  papers  introduced  by  the  plaintiff, 
for  the  purpose  of  showing  title  to  the  premi- 
ses demanded.  The  only  question,  therefore, 
which  the  court  have  deemed  it  necessary  to 
decide  is,  how  far  the  devises,  upon  which  the 
plaintiff  relies,  can  avail  him.  They  were  nev- 
er filed  and  recorded  in  any  probate  otfice  in 
this  state,  until  since  the  bringing  of  this  suit. 
At  the  last  term  of  this  court,  in  the  same  case, 
it  was  decided,  that  the  probate  of  the  wills  in 
the  state  of  Rhode  Island  could  not  avail  the 
plaintiff  in  this  state.  Since  that  time  the  req- 
uisite probate  has  been  made  in  this  state. 

It  is  true  that  the  plaintiff  must  recover  upon 
his  title,  as  it  existe-^"  at  the  time  of  bringing 
suit,  but  the  recording  of  deeds,  necessary  to 
their  being  read,  may  be  done  at  any  time  be- 
fore the  trial.  When  the  deed  is  recorded,  it 
takes  effect  from  the  delivery.  So  in  this  case, 
it  is  the  death  of  the  devisor  that  vests  the  title. 
At  common  law.  no  probate  of  a  devise  or  will, 
disposing  of  real  estate,  was  required,  or  was 
of  any  avail.  In  this  state  such  probate  is  in- 
dispensable, as  the  probate  court  have 
exclusive  jurisdiction  of  the  proof  *of  *631 
wills,  of  real  as  well  as  personal  estate. 
But  this  is  mere  matter  of  evidence,  and  if 
done  at  any  time  before  the  trial,  the  devise 
takes  effect  from  the  death  of  the  devisor. 

The  question,  whether  the  land  named  in  the 
devise  is  the  same  land  sued  for.  was  one  of 
fact  for  the  jury,  and  not  subject  to  revision 
here. 

Judgment  aflQrmed. 


TITLE  BY  DEVISE. 


301 


Ex  parte  FULLER. 

(Fed.  Cas.  No.  5,147,  2  Story,  327.) 

Circuit   Court,   D.   Massachusetts.      Mav   Term, 
1842. 

This  case  came  np  In  the  district  court 
[case  uiiroported]  on  a  petition  by  the  as- 
signee [ITenry  W.  Fuller]  for  leave  to  cell 
one  undivided  half  part  of  -certain  real  estate 
in  Portland,  Maine,  -which  was  devised  to 
Andrew  Koss,  a  bankrupt,  and  his  sister; 
and  which  was  referred  to  in  the  original 
petition  of  tlic  bankrupt,  as  follows:  "David 
lloss,  of  Portland,  Maine,  grand-father  of 
your  petitioner,  died  at  Portland,  Me.,  the 
latter  part  of  December,  1841,  and  your  pe- 
titioner has  reason  to  believe  he  may,  by 
his  wife,  have  bequeathed  to  him  and  his 
sister,  a  certain  piece  of  property  in  Port- 
land. The  instrument  puii^orting  to  be  his 
last  will  and  testament  has  not  been  present- 
ed for  probate,  and  of  course  has  not  been 
proved,  approved  and  allowed."  Andrew 
lloss  filed  his  petition  to  be  declared  a  bank- 
rupt on  February  Sth,  1S42,  and  was  declar- 
ed a  bankrupt  on  March  22d,  1842.  David 
Ross,  the  grand-father  of  Andrew,  died  De- 
cember 29,  1841,  testate.  His  will  was  pre- 
sented and  filed  for  probate  at  Portland, 
March  15,  1842,  and  was  proved,  approved, 
and  allowed,  April  19,  1842.  Andrew  Ross, 
who  was  named  in  the  will  as  one  of  the 
executors,  upon  being  informed  of  the  fact, 
declined  accepting  that  office,  and  David 
lioss,  Jun.,  the  other  executor,  was  appoint- 
ed and  qualified  as  executor.  By  the  will, 
the  estate  in  question  was  devised  uncondi- 
tionally and  in  fee,  to  Andrew  Koss  and  his 
sister.  The  will  was  not  filed  for  probate 
until  after  the  filing  of  Andrew  Ross's  peti- 
tion to  be  declared  a  bankrupt;  and  was  not 
proved  and  allowed,  until  after  he  was  de- 
clared a  bankrupt.  Andrew  Ross,  living  in 
Boston,  had  nothing  to  do  with  his  grand- 
father's estate,  and  did  no  act  accepting  or 
declining  the  devise.  Upon  this  statement 
of  facts,  the  following  question  was  ordered 
by  the  district  court  to  be  adjourned  into  this 
court,  namely:  "Whether,  upon  the  forego- 
ing facts,  the  said  real  estate,  devised  as 
aforesaid  to  Andrew  Ross,  is  the  property 
of  the  said  assignee,  so  that  he  may  sell  and 
convey  the  sanie  as  a  part  of  the  estate  of 
the  said  Ross." 

IT.  W.  Fuller,  as  assignee. 
Mr.  Rogers,  for  the  bankrupt. 

STORY,  Circuit  Justice.  Two  questions 
arising  upon  the  statement  of  facts  are  sub- 
mitted to  this  court  for  decision.  1.  In  the 
first  p>ace,  Avhen  upon  the  principles  of  the 
common  law,  does  a  devise  of  real  estate 
take  effect  in  tlie  state  of  Maine?  2.  Is  it 
from  the  date  of  the  probate  of  the  will,  or 
from  the  death  of  the  testator,  and  as  con- 
nected with  this,  whether  any  assent  to  the 


devise  is  retiuired  before  the  estate  Vests  in 
the  devisee?  Now,  upon  this  question,  I  can- 
not say  that  I  feel  any  doubt  The  probate 
courts  of  Maine  (like  the  probate  courts  of 
many  other  states  in  tlie  Union)  have  orig- 
inal and  exclusive  jurisdiction  over  wills  of 
real  estate,  as  well  as  of  personal  estate; 
and  the  decision  of  the  proper  probate  court, 
original  or  appellate,  as  to  approval  or  dis- 
approval of  such  wills,  is  final  and  conclu- 
sive as  to  the  validity  thereof,  and  cannot 
be  questioned  or  reexamined  in  any  other 
tribunal.  In  short,  our  probate  courts  gen- 
erally possess  the  same  exclusive  jurisdic- 
tion over  the  probate  of  wills  of  real  estate, 
that  the  ecclesiastical  courts  of  England  ex- 
ercised over  wills  of  personalty.  This  is  ad- 
mitted on  all  sides;  and,  indeed,  is  now  too 
firmly  established  to  admit  of  juridical  con- 
troversy. 

Now,  as  soon  as  a  will  of  real  estate,  or 
personal  estate,  is  admitted  to  probate,  and 
approved,  I  take  it  to  be  clear,  upon  the 
principles  of  the  common  law,  tliat  the  pro- 
bate relates  back  to  the  death  of  the  testator, 
and  affirms  and  fixes  the  title  of  the  devisee 
thereto,  from  that  period.  This  would  seem 
a  necessary  result;  for  no  title  can  pass  by 
descent  or  distribution  to  the  heirs  or  next 
of  kin  of  the  testator,  since  the  whole  is 
disposed  of  by  his  will;  and  the  title  cannot 
be  in  abeyance,  or  in  nubibus,  at  least  in 
contemplation  of  law.  Thus,  in  eveiy  trial 
at  the  common  law,  involving  a  title  by  de- 
vise, if  the  devisee  assents  thereto,  the  title 
is  in  him  from  the  death  of  the  testator,  by 
mere  operation  of  law,  if  the  will  is  establish- 
ed by  the  verdict  of  the  jury;  although  the 
trial  may  not  occur,  until  many  years  after 
the  death  of  the  testator.  The  like  rule  ap- 
plies to  the  probate  of  wills  of  personalty 
in  the  ecclesiastical  courts,  where  the  title 
of  the  legatees,  and  of  the  executor,  takes 
effect  by  relation  from  tlie  death  of  the  tes- 
tator. It  is  wholly  unnecessary  to  cite  au- 
thorities upon  such  a  point.  But,  if  it  were 
necessai-y,  Co.  Litt  11  lb,  is  directly  in  point, 
where  Lord  Coke  says,  that,  "In  case  of  a 
devise  by  will  of  lands,  whereof  the  devisor 
is  seized  in  fee,  the  f eehold,  or  interest  in  law, 
is  in  the  devisee  before  he  doth  enter;  and 
in  that  case,  nothing,  having  regard  to  the 
estate  or  interest  devised,  descendeth  to  the 
heir."  The  same  doctrine  was  firmly  es- 
tablished in  Massiichusetts  (from  which 
Maine  derives  its  jurisprudence)  long  before 
my  time;  and  it  is  fully  recognized  in  the 
case  of  Spring  v.  Parkman,  3  Fairf.  [12  Me.] 
127.  The  case  of  Shumway  v.  Holbrook.  1 
Pick.  114,  proceeds  upon  the  admission  of 
the  like  doctrine,  and  shows  that  no  title 
can  be  proved  to  land  by  devise,  in  a  court 
of  common  law,  until  the  will  has  been  prov- 
ed in  the  proper  court  of  probate. 

As  to  the  other  point  there  is  no  doubt 
that  the  devisee  must  consent  otherwise  the 
title  does  not  vest  in  him.     But  where  the 


302 


TITLE. 


estate  ^  devised  absolutely,  and  without  ] 
any  ti'ust  or  incumbrances,  the  law  will  pre- 
sume it  to  be  accepted  by  the  devisee,  be- 
cause it  is  for  his  benefit;  and  some  solemn, 
notorious  act  is  required,  to  establish  his  re- 
nunciation or  disclaimer  of  it  Until  that 
is  done,  "Stabit  presumptio  pro  veritate." 
That  is  sufficiently  shown  by  the  case  of 
Townson  v.  Tickell,  3  Bam.  &  Aid.  31,  cited 
at  the  bar,  and  the  still  later  case  of  Doe  d. 
Smyth  V.  Smyth,  6  Barn.  &  C.  112.  Brown 
v.  Wood,  17  Mass.  68,  and  Ward  v.  Fuller, 
15  Pick.  185,  manifestly  proceeded  upon  the 
same  foundation. 

Now,  in  the  present  case,  there  is  no  pre- 
tence to  say,  that  Ross  has  ever  renounced 
or  disclaimed  the  estate  devised  to  him.    The 
statement  of  facts  is,  that  he  has  done  no 
act  accepting  or  declining  the  devise.     If  so, 
then  the  presumption  of  law  is,  that  he  has, 
by  implication,  accepted  it,  since  it  gives  him 
an  unconditional  fee.  .  But  I  think,  that  the 
very  formulary,  in  which  he  has  inserted  a 
reference  to  it  in  the  schediile  of  his  estate 
is  decisive  to  show  that  he  intended  to  ac- 
cept whatever  estate  should   be  devised  to 
him    by    his    grandfather's    will.     Until    he 
filed  his  petition  in  bankruptcy,  the  presump- 
tion of  his  acceptance  is  irresistible;    for  it 
was  clearly  for  his  benefit;   and  after  he  had 
done  so,  I  am  of  opinion,   that  he  had  no 
right  to  disclaim  or  renounce  it.     It  would 
be  a  fraud  upon  his  creditors;   and  a  court 
of  equity  would  compel  him  to  do  all  acts 
necessary  to  perfect  his  title  to  the  devised 
estate;    and  if  he  did  not,  no  court  of  bank- 
ruptcy would  decree  him  a  certificate  of  dis- 
charge.    The  banlo-upt  act  of  1841,  c.  9,  § 
3  [5  Stat.  440],  vests  "all  the  property  and 
rights   of    property,    of    every     name    and 
natm-e,"  of  the  bankrupt,  by  mere  operation 
of  law,  in  his  assignee,  upon  the  decree  of 
bankruptcy.     Nothing  can   be   clearer,    than 
that,  at  the  time  of  his  bankruptcy,  the  de- 
vise in  the  present  case  was  a  right  of  prop- 
erty vested  in  Ross.     The  law  presumed  his 
acceptance,    until   the    contrary    should    be 
shown.     His  title  could  be  devested  only  by 
his  renunciation  and  disclaimer  of  the  devise 
before  that  time;    and  the  subsequent  pro- 
bate of  the  will,  by  relation,  made  the  title 
complete  in  the  assignee.     If  Ross's  consent 
had  been  necessary  to  make  it  complete,  he 
was  boimd  formally  to  give  it;    and  he  may 
even  be  compelled  to  give  it,  by  a  court  of 
equity.     The    light   of   property    was    incho- 
ate, if  it  was  not  consummated,  in  the  as- 
signee  from   the   moment  of   the  deci'ee   in 
bankruptcy;    and  no  subsequent  act  of  the 
bankrupt  could  change  it. 

It  has  been  suggested,  that  the  devise  was 
not  beneficial  to  Ross,  and  therefore  no  pre- 
sumption can  arise  of  his  acceptance  of  it. 
How  that  can  be  well  made  out,  I  do  not 
perceive.  Before  his  bankruptcy,  it  was 
clearly  for  his  benefit;  and  that  event  has 
not  changed  the  nature  of  the  interest,  but 


merely  the  mode  of  appropriating  it     His 
own  voluntary  act  has  enabled  his  creditors 
to  have  the  benefit  of  it     As  an  honest  debt- 
or, he  must  desire,  that  his  creditors  shoiild 
derive  as  much  benefit  from  aU  his  "rights 
of  property,"  as  is  possible.     It  would  be  a 
fraud   on   his  part  to   withdraw   any   fund 
from  their  reach  by  a  disclaimer  or  renuncia- 
tion; and  it  ought  to  deprive  him  of  a  certifi- 
cate of  discharge.     It  is,   therefore,   clearly 
now  for  his  benefit  to  presume  his  acceptance 
of  the  devise;    rather  than  to  presume  him 
willing  to  aid  in  the  perpetration  of  a  fraud. 
If  this,  be  the  true  posture  of  the  case» 
standing  upon  the  general  principles  of  the 
common   law,    the    remaining    question   is, 
whether  the  Revised  Statutes  of  Maine,  of 
1840,  c.  92,  §  25,  have  made  any  alteration  in 
the  operation  of  the  common  law,  as  to  the 
probate  of  wills.     The  25th  section  declares; 
"No  will  shall  be  effectual  to  pass  real   or 
personal   estate,   unless   it  shall   have   been 
duly   proved   and   allowed     in   the    probate 
com-t;    and  the  probate  of  such  will  shall  be 
conclusive  as  to  the  due  execution  thereof." 
The  argument  is,  that  under  this  clause,  a 
will  is  a  mere  nullity  before  probate;    that 
the  probate  gives  it  life  and  effect  from  that 
time,  and  not  retroactively.     It  appears  to 
me  that  this  section  is  merely  affirmative  of 
the  law,  as  it  antecedently  stood.     The  will 
before  probate,  is,  in  no  just  juridical  sense, 
a  nuUity.     The  very  language  of  the  section 
proliibits   such  an  interpretation.     The  will 
must  still  be  the  foundation  of  the   whole 
title,  inchoate  and  imperfect,  if  you  please, 
imtil  its  validity  is  ascertained  by  the  pro- 
bate, but  still  a  will,  and  not  a  nullity.     It 
would  be  an  anomaly  in  the  use  of  language, 
to  speak  of  the  probate  of  a  niillity.     The 
probate  ascertains  notliing;  but  the  original 
validity  of  the  will  as  such.     The  fact  of  the 
testator  gave  it  life;  his  death  consummated 
the  title,  derivatively  from  himself;   and  the 
probate  only  ascertains  that  the  instrument 
in  fact  is  what  it  purports  on  its  face  to  be. 
It  might  as  well  be  said  that  a  will  of  real 
estate,  at  the  common  law,  is  a  nullity,  until 
a  jury  has  ascertained  its  validity;   whereas 
the  verdict  ascertains  only  the  fact  that  the 
title  under   the   will   is   perfect   because   it 
was  duly  executed  by  a  competent  testator, 
and  therefore  took  effect  by  relation  from 
the  time  of  his  death. 

But  if  the  argument  itself  were  well  found- 
ed, it  would  not  warrant  the  inference  at- 
tempted to  be  drawn  from  it  By  the  pro- 
bate, when  granted,  the  will,  under  the  sec- 
tion, takes  effect  by  relation  back  from  tlie 
death  of  the  testator.  It  recognises  and 
vests  the  title  in  the  devisee  from  that  mom- 
ent. It  would  otherwise  happen,  that  if  he 
should  die  before  the  probate,  having  ac- 
cepted of  the  devise,  no  title  could  vest  in 
him;  but  the  bounty  of  the  testator  would 
be  defeated.  Such  a  construction  of  the  sec- 
tion   would   be    productive   of   the    grossest 


TITLE  BY  DEVISE. 


£03 


mischiefs;  and  there  is  not  a  word  in  the 
section,  which  authorizes,  or  even  counten- 
ances it.  The  section  only  provides,  that  no 
will  shall  be  effectual  to  pass  real  estate,  un- 
less it  shall  have  been  duly  proved;  not, 
until  it  shall  have  been  duly  proved.  When 
proved,  it  is  to  all  intents  and  purposes  a  will; 


and  it  is  to  operate  upon  the  interests  of 
the  testator,  when  he  intended,  that  is,  from 
the  time  of  his  death. 

Upon  the  whole,  my  opinion  is,  that  ths 
question  propounded  by  the  district  court, 
ought  to  be  answered  in  the  affirmative;  and 
I  shall  direct  a  certificate  accordingly. 


304 


TITLE. 


CARMICHAEL  t.  LATHROP  et  al. 
(66  N.  W.  350.) 

Supreme  Court  of  Michigan.     Feb.  26,  1896. 

Appeal  from  circuit  court,  Wayne  county, 
in  chancery;    Joseph  W.  Donovan,  Judge. 

Action  by  Marilla  B.  Carmiehael  against 
Ada  M.  Lathrop  and  Emily  B.  Lloyd.  De- 
cree for  defendants,  and  plaintiff  appeals. 
Reversed. 

Fi-aser  &  Gates,  for  appellant  Charles  A. 
Kent,  for  appellees. 

HOOKER,  J.     The  will  of  Henry  P.  Pul- 
ling was  executed  in  June,  1872.     After  giv- 
ing his  wife  the  use  and  enjoyment  of  all 
of  his  property  during  life,  in  lieu  of  dower, 
it  provided  that:    "Second.  All  the  remain- 
der of   the   estate  of,    in,    and  to    my   said 
property,  both  real  and  personal,  subject  to 
the  said  life  estate  of  my  said  wife,  I  give, 
devise,  and  bequeath  to  my  three  daughters, 
Ada  M.  Lathrop,  of  Detroit.  Michigan,  Emily 
Lloyd,  of  Albany,  New  York,  and  Marilla  B. 
Carmiehael,  of  Amsterdam,  New  I'ork,  and 
to  their  heirs  forever,  share  and  share  alike. 
*     *     *     Third.  I  hereby  authorize  and  em- 
power  my   hereinafter  named   executors  to 
sell   and   convey   in  fee   simple   abSTlute,   in 
their   discretion,   any  portion    or   all   of   my 
real    estate,    with   a   view    of   otherwise   in- 
vesting the  proceeds  thereof,   or  to  change 
my  present  securities  into  real  investments. 
But  such  change  is  to  be  done  with  the  con- 
sent of  my  wife,  and  the  approval  of  the 
probate  court  or  a  court  of  chancery.     And 
this  power  and  authority  of  so  selling  and 
conveying   in   fee    simple   absolute    my    real 
estate  is  hereby  made  notwithstanding  the 
bequests  which  are  given  to  my  daughters, 
which  bequests  are  hereby  made  subservient 
to  said  power.     And  I  do  hereby  direct  my 
executors  to  invest  all  my  moneys  and  prop- 
erty, and  the  avails  of  all  real  estate  so  sold, 
in  first-class,  unincumbered  real-estate  mort- 
gages, or  in  United  States  bonds  or  Michigan 
state  bonds,   said  securities  to  be  held  and 
retained   by   them,   and   the   income   thereof 
paid    quarter    yearly,   or,  at    the    furthest, 
every  half  year,  by  tliem,  to  my  said  wife, 
until   her   decease,    and   on   such    death    my 
e.state  is  to  be  closed  up  and  distributed  as 
provided    for   in    the    second   clause   of  this 
my    will.     And   lastly    1   do    hereby   appoint 
my   brother    Abraham    C.    Pulling,    of    New 
York    City,    my  brother-in-law   William     P. 
Bridgman,    of    Detroit,    and    my    son-in-law 
Joseph    Lathrop.    of   Detroit,    to   be   Iha   ex- 
ecutors of  this  my  last  will  and  testament, 
hereby    revoking    all    former    wills    by    me 
made."     Mr.  Pulling  died  in  July,  IStKJ.  and 
the    will    was    probated   August    19,   ISUO. 
Joseph   Lathrop  qualified  as  executor.     Tlie 
probate    records    show   that  at   the  time   of 
the  testator's  death  he  was  seised  in  fee  of 
real  estate  to  the  value  of  $05,009,  that  there 
was  due  to  him  upon  land  contracts  $45,UO0, 
that    he   owned    other   personal   property   to 


the  amount  of  ?30,000,  and  that  there  were- 
no  debts  or  claims  against  the  estate.  Pre- 
vious to  the  death  of  the  testator,  he  con- 
veyed to  each  of  the  defendants  a  parcel 
of  real  estate;  that  conveyed  to  Mrs.  Lloyd 
being  alleged  to  be  worth  ?14,000,  and  that 
received  by  Mi-s.  Lathrop  said  to  be  worth, 
$10,000.  The^e  is  evidence  tending  to  show 
that  he  intended  to  repair  the  house  upjn 
Mrs.  Lathrop's  property,  thereljy  making  the 
gift  to  her  equal  to  that  of  Mrs.  Lloyd,  and 
that  he  intended  to  do  as  well  by  his  other 
daughter,  the  complainant;  but  her  hus- 
band became  embarrassed,  and  finally  went 
to  state's  prison,  and  she  never  received  a 
home,  as  the  others  had.  Her  father,  how- 
ever, gave  to  her  money  from  time  to  time, 
for  her  support,  which  aggregated  $1,100. 
Soon  after  the  probate  of  the  will,  litigation 
arose  between  the  widow  and  children, 
which  was  finally  adjusted,  and  the  property 
was  divided,  the  parties  executing  the  neces- 
sary deeds  and  other  instruments  to  cari-y  it 
into  effect.  The  accounts  of  Lathrop,  th& 
executor,  were  settled,  and  he  was  dischar- 
ged. There  is  now  some  land  held  in  com- 
mon by  the  three  sisters. 

The  complainant  files  the  bill  in  this  cause,, 
alleging  that  the  lands  conveyed  by  the  tes- 
tator to  her  two  sisters  should  be  treated  as 
ademptions  of  their  respective  legacies,  and 
that  they  should  be  required  to  account  to 
her  for  her  share  thereof.  She  alleges  that 
her  father  so  intended,  and  that  they  rec- 
ognized the  justice  thereof,  and  promised 
to  see  that  she  received  the  same,  and,  rely- 
ing upon  such  promises,  she  consented  to  the 
settlement  of  the  estate,  expecting  that  her 
sisters  would  pay  her  an  amount  equal  to 
her  share  of  said  parcels  so  received  by 
them.  It  seems  tacitly  agreed  that  this  rec- 
ord involves  only  the  question  whether  the 
property  conveyed  to  Mrs.  Lloyd  and  Mrs. 
Lathrop  before  the  testator's  death  should 
be  applied  upon  their  respective  interests 
under  the  will,  or,  in  other  words,  as  .the 
counsel  for  the  complainant  state  it,  wheth- 
er it  can  be  treated  as  ademption  or  a  satis- 
faction pro  tanto  of  their  bequests.  We  are 
perhaps  at  liberty  to  assume  from  the  plead- 
ings and  admitted  facts  that  the  defend- 
ants received  sufficient  personal  propei-ty 
under  the  will  to  more  than  cover  the  claim 
of  the  complainant;  in  other  words,  that 
they  have  received  bequests  to  such  amount 
in  addition  to  any  lands  that  they  may  have 
received.  As  to  such  i>ersonal  property,  the 
will  made  the  sisters  legatees,  although  they 
may  have  been  also  devisees  as  to  the  real 
estate,  if  the  contention  of  the  defendants' 
counsel  is  correct.  In  other  words,  they  are 
none  the  less  legatees,  taking  bequests  of 
personal  property,  because  one  and  the  same 
provision  of  the  will  gave  them  both  personal 
and  real  property.  Hence  we  need  spend  no 
time  upon  the  question  whether  the  terms 
of  the  will  made  them  devisees,  as  there  are 
legacies  sufficient  to  support  the  ademption 


TITLE  BY  DEVISE. 


305 


contended  for.  We  can  therefore  eliminate 
some  of  the  questions  which  arise  wliere  an 
attempt  is  made  to  apply  the  doctrine  of 
satisfaction  to  a  devise  of  real  property  by 
reason  of  the  conveyance  to  the  devisee  of 
other  property.  The  case  is  one  where  it  is 
claimed  that  a  gift  of  personal  property  by 
will  may  be  satisfied  by  a  conveyance  of 
land,  when  such  is  the  clear  intention  of  the 
testator.  If  a  person  should  bequeath  to 
another  a  sum  of  money,  and,  previous  to 
his  (the  testator's)  death,  should  pay  to  such 
person  the  same  amount,  upon  the  express 
understanding  that  it  was  to  discharge  the 
bequest,  the  legacy  would  be  thereby  adeem- 
ed. But,  in  the  absence  of  an  apparent  or 
expressed  intention,  that  would  not  ordi- 
narily be  the  effect  of  the  payment  of  a 
sum  of  money  to  a  legatee  under  an  exist- 
ing will.  Generally,  such  payment  would 
not  affect  the  legacy.  To  this  rule  there  is 
an  exception,  where  the  testator  is  a  parent 
of  or  stands  to  the  legatee  in  loco  parentis. 
In  such  case  the  payment  would  be  presum- 
ed to  be  an  ademption  of  the  legacy.  At 
first  blush  this  impresses  one  as  an  imrea- 
sonable  rule,  as  it  puts  the  stranger  legatee 
upon  a  better  footing  than  the  testator's 
own  son,  and  judges  and  law-writers  have 
severely  condemned  the  rule.  See  Story, 
Eq.  Jur.  §§  1110-1113.  It  has  been  said  that 
"this  rule  has  excited  the  regret  and  cen- 
sure of  more  than  one  eminent  modern  judge, 
although  it  has  met  with  approbation  fixim 
other  high  authorities."  Williams,  Ex'rs, 
13-32.  Story's  condemnation  of  it  is  strong, 
but  lie  adds,  "We  must  be  content  to  declare 
it  a  lex  scripta  est  It  is  established,  though 
it  may  not  be  entirely  approved."  And 
Worden,  J.,  in  Weston  v.  Johnson,  48  Ind. 
5,  says,  "Whatever  may  be  thought  of  the 
doctrine,  it  is  thoroughly  established  in  Eng- 
lish and  American  jurisprudence."  Shudal 
V.  Jekyll,  2  Atk.  518;  2  White  &  T.  Lead. 
Gas.  Eq.  (4th  Ed.)  741;  Van  Houten  v.  Post, 
33  N.  J.  Eq.  344;  Ex  parte  Pye,  18  Ves.  140. 
With  a  refinement  of  logic,  characteristic, 
the  early  English  judges  held  that  the  in- 
tention to  adeem  a  legacy  is  to  be  presum- 
ed from  the  advancement  of  a  part  of  the 
legacy,  on  the  theory  that  it  was  the  testa- 
tor's right  to  do  so,  and  tliat  he  must  be  pre- 
sumed to  be  the  best  judge  of  the  propriety 
of  a  revocation;  but  the  rigor  of  this  rule 
has  been  relaxed,  and  cannot  now  be  said 
to  be  the  law.  Ex  parte  Pye,  18  Ves.  140; 
Pym  V.  Lockyer,  5  Mylne  &  C.  29,  55;  Mon- 
tague V.  Montague,  15  Beav.  565;  Williams, 
Ex'rs,  1.3.33;  Hopwood  v.  Hop  wood,  7  H.  L. 
Gas.  728;  Wallace  v.  Du  Bois.  65  Md.  153, 
159,  4  Atl.  402.  See  cases  cited  1  Pom.  Eq. 
Jur.  §  555,  note  3.  There  are  cogent  rea- 
sons in  support  of  the  rule  stilted,—!,  e.  that 
payment  to  a  son  adeems  the  legacy,— which 
is  based  on  the  theory  that  such  legacy  is 
to  be  considered  as  a  portion,  and  that  the 
father's  natural  inclination  to  ti-eat  his  chil- 
dren alike  renders  it  more  probable  that  his 
GATES.R.P.— 20 


payment  was  in  the  nature  of  an  advance- 
ment than  a  discrimination  in  favor  of  one, 
oftentimes  the  least  worthy.  Double  por- 
tions were  considered  inetiuitable,  and  upon 
this  the  doctrine  rests.  Suisse  v.  Lowther, 
2  Hare,  427.  While  the  authorities  are  a 
unit  that  a  legacy  by  one  in  loco  parentis 
will  be  adeemed  by  payment,  in  the  ab- 
sence of  an  apparent  or  expressed  intent  to 
the  contrary,  the  doctrine  was  early  re- 
stricted. Among  other  limitations  was  the 
rule  that  the  presumption  could  not  be  ap- 
plied to  a  residuary  bequest,  because  the 
court  would  not  presume  that  a  legacy  of  a 
residue,  or  other  indefinite  amount,  had  been 
satisfied  by  an  advancement,  as  the  testa- 
tor might  be  ignorant  whether  the  benefit 
that  he  was  conferring  equaled  that  which 
he  had  already  willed.  Freemantle  v. 
Bankes,  5  Ves.  85;  Glendening  v.  CJymer,  17 
Ind.  155;  Story,  Eq.  Jur.  §  1115.  This  ex- 
ception fell  with  the  discarding  of  the  rule 
that  satisfaction  must  be  in  full.  Pym  v. 
Lockyer,  5  Mylne  &  C.  29;  Montcfiore  v. 
Guedelbi,  1  De  Gex,  F.  &  J.  93.  Again,  it 
was  held  that  it  could  not  be  applied  unless 
the  advancement  was  ejusdem  generis  with 
the  legacy.  See  2  Story,  Eq.  Jur.  §  1109. 
Gounsel  for  the  defendant  contend  that  "the 
conveyance  of  real  estate  after  the  making 
of  a  will  is  held  not  a  satisfaction  of  any^ 
legacy,  in  whole  or  in  part,  even  though  that 
was  the  clear  intent  of  the  testator,"  and  he 
cites  several  authorities  to  sustain  the  prop- 
osition. In  Arthur  v.  Arthur,  10  Barb.  9,  it 
was  held  that  "a  conveyance  made  subse- 
quent to  a  devise  of  land  is  not  a  revocation 
or  satisfaction  of  a  devise  of  other  lands  to 
the  grantee.  But,  if  the  conveyance  be  of 
a  portion  of  the  same  land,  that  is  a  revoca- 
tion ijro  tanto."  This  was  a  case  where  the 
court  found  that  the  grantor  intended  and 
the  grantee  expected  the  land  conveyed 
would  be  in  lieu  of  the  grantee's  share  un- 
der the  will.  It  was  said  that  to  hold  that 
the  conveyance  was  a  satisfaction  was  to 
hold  that  the  will  might  be  revoked  by  im- 
plication, which  could  not  be  tolerated  un- 
der the  statute  of  frauds.  This  case  con- 
tains an  elaborate  discussion  of  the  subject, 
and  cites  many  of  the  earlier  authorities 
bearing  upon  it.  The  court  of  appeals  con- 
sidered the  subject  in  Burnham  v.  Goinfort,, 
108  N.  Y.  535.  15  N.  E.  710.  In  this  case  it 
was  claimed  that  a  devise  of  real  property 
was  satisfied  by  the  payment  of  money,  on 
the  express  understanding,  evidenced  by  the 
receipt  of  the  devisee,  that  it  was  received  as 
a  part  of  her  father's  estate.  The  court 
said  that  to  sustain  such  claim  they  must 
hold  that  it  operated  as  a  revocation  of  the 
will,  which  would  contravene  "the  spirit,  if 
not  the  letter  "  of  the  statute  of  frauds,  and 
that  the  proposition  "lackixi  support  in  prin- 
ciple as  well  as  authority."  The  opinion 
then  asserts  that  "the  rule  of  ademption  is 
predicable  of  legacies  of  personal  estate,  and 
not  applicable  to  devises  of  realty."    After 


306 


TITLE. 


discussing  the  question  of  intention,  and  in- 
timating tliat,    wliile  a   presumption  of   in- 
tention that  the  gift  should  be  in  satisfac- 
tion would  exist  if  the   case   were  one   in- 
volving a  legacy,  it  would  not  in  case  of  a 
devise,   it   proceeds   to   show   that   the   stat- 
ute of  frauds,  which  extends  to  wills,  was 
an   unsurmountable  barrier  to  the  applica- 
tion  of   the    rule   contended   for,    as    to    de- 
vises.   Two  members  of  the  court  dissented. 
The   supreme   court    of    South    Carolina,    in 
the  case  of  Allen  v.  Allen,  13  S.  C.  512,  had 
occasion  to  consider  a  case  where  the  lega- 
tees were  also  devisees,  as  in  the  present 
case.     It  was  held  that  payments  of  money 
were  to  be  considered  as  made  in  satisfac- 
tion of  the  legacies,  but  not  the  devises.   The 
court  said:    "It  would  seem  that,   upon  the 
same  principles,  devises  of  real  estate  ought 
likewise  to  be  adeemed  (if  such  a  term  can, 
with  any  propriety,   be  applied  to  devises) 
by    subsequent    payments    to    the    devisees 
with  the  intention  of  producing  that  result; 
but    it    is    conceded     that    the    doctrine    of 
ademption    has    never   been    applied    to    de- 
vises of  real  estate,  and,  in  the  absence  of 
any  authority,    we   do   not   feel  justified   in 
disregarding  the  well-established  line  which 
has  for  ages  been  drawn  between  real  and 
personal   estate,    even    though    we    may   be 
thereby  compelled  to  thwart  the  obvious  in- 
tention of  the  testator,  and  disturb  the  dis- 
tribution of  his  property  which  he  thought 
was    proper   and   just    to    his    descendants. 
P^'or,   while  the  intention  of  the  testator  is 
the  cardinal  rule  of  construction  of  a  will, 
yet   such   inlention   cannot   be  given    where 
it  is  in  conflict  with  the  rules  of  law.    A  de- 
vise of  real  estate  cannot,  like  a  pecuniary 
legacy,  be  affected  by  any  subsequent  trans- 
actions  between   the   testator   and    the   de- 
visee, but  must  stand  until  it  is  revoked  or 
altered  in  the  manner  prescribed  by   law." 
Attention  is  also  called  to  the  case  of  Swails 
V.    Swails,   98  Ind.   511.     In  this   case   land 
was  devised  as  follows:    88  acres  to  J.;    36 
acres  to  N.     Subsequently  the  testator  con- 
veyed portions  of  the  same  land  as  follows, 
viz.:    60  acres  to  .7.,  the  son;   and  40  acres  to 
N.,  a  grandson.     It  was  held  that  the  deeds 
did  not  revoke  the  devise  of  the  24  acres  to 
N.,  and  that  the  doctrine  of  ademption  does 
not  apply  to  spedfic  devises  of  real  estate, 
nor  where  the  devisor  does  not  stand  in  loco 
parentis.      The    case    followed    Weston    v. 
Johnson,  48  Ind.  1,   where  it  was  held  that 
the    doctrine    of    ademption    of    legacies    by 
advancement  to  the  legatee  by  the  testator 
in    his   lifetime    has    no    application    to    de- 
vises of  real  estate.     Again,  in  Campbell  v. 
Martin,  87  Ind.  577,  it  is  said.  "But  we  know 
of  no  reason  whatever  for  the  extension  of 
the    doctrine,   and   making   it   applicable    to 
devises    of    real     estate."    In     Marshall    v. 
Rench,  3  Del.  Ch.  239,  the  court  admits  that 
in  some  cases  a  conveyance  to  a  devisee  aft- 
er the  making  of  the  will  would  operate  in 
Uke  manner  as  the  ademption  of  a  legacy,— 


e.  g.  where  the  conveyance  to  the  devisee  is 
of  the  same  land,— because  "by  such  a  con- 
veyance the  testator  executes  his  devise, 
precisely  as  the  settlement  of  a  portion  on  a 
legatee  is  an  ademption  of  the  legacy."  The 
court  adds  that  "the  conveyance  to  a  devisee 
of  lands  other  than  those  devised,  or  of  an 
interest  in  lands  different  from  that  devised, 
has  never  been  held  an  implied  revocation 
of  the  devise."  The  authorities  cited  in 
support  of  this  are  all  ancient,  except  Ar- 
thur V.  Arthur,  hereinbefore  discussed.  We 
mention  at  this  point  the  fact  that  all  of 
these  were  cases  where  the  attack  was 
made  upon  a  devise,  merely,  except  the 
South  Carolina  case,  and  in  that  case  the 
claim  of  ademption  was  sustained  as  to  the 
legacies.  2  Woerner,  Adm'n,  p.  978,  is  cit- 
ed in  support  of  defendants'  contention. 
This  author  dismisses  the  subject  with  the 
statement  that  "specific  legacies  are  said  not 
to  be  affected  by  the  subsequent  advance- 
ment of  a  portion,  because  the  gift  of  spe- 
cific articles  of  personal  property  by  a  fath- 
er to  his  child  is  not  pi-esumed  to  be  intend- 
ed as  a  portion.  And,  for  the  same  reason, 
real  estate  devised  is  held  not  to  come  with- 
in the  rule;  but  this  exception  is  repudiated 
in  Virginia,  and  unfavorably  commented  on 
elsewhere."  See  Hansbrough  v.  Hooe,  12 
Leigh,  310, 

The  authorities  cited  have  been  commented 
on  at  length  for  the  purpose  of  showing  that 
they  differ  from  the  case  before  us,  inasmuch 
as  they  were  cases  where  it  was  sought  to 
treat  conveyances  as  satisfactions  of  devises. 
This  is  not  a  case  where  an  attempt  is  made 
to  deprive  a  devisee  of  title  to  land  willed  to 
him,  but  it  is  claimed  that  the  presumption 
that  a  bequest  to  a  son  is  satisfied  pro  tanto 
by  a  gift  is  not  to  be  applied  where  the  gift 
is  of  land  instead  of  money,  or  other  personal 
property    ejusdem    generis.     In    Richards    v. 
Humphreys,  15  Pick.  140,  will  be  found  the 
following  dictum  of  Shaw,  U  J.:     "We  have 
seen  that  ademption  depends  solely  upon  the 
will  of  the  testator,  and  not  at  all  upon  the 
ability  of  the  party  receiving  to  give  a  valid 
discharge.     Had  money  been  paid  to  trustees 
or  others  for  her  benefit,  without  any  act  or 
consent  of  hers,  if  given  expressly  in  lieu  or 
in  satisfaction  of  such  legacy  to  her,  it  would 
have  operated  as  an  ademption.    Had  he  pur- 
chased a  house  or  other  property  in  her  name, 
and  for  her  benefit,  with  the  like  intent  and 
purpose    expressed,    it    would    have    had    the 
same    effect."     It  is  apparent  that   the  law 
looks  upon  a  legacy  to  a  son  as  a  setting  off 
of  his  portion.     Also,  it  is  plain  that  a  subse- 
quent gift,  unless  it  be  of  real  estate,  is  pre- 
sumed to  be  in  satisfaction  pro  tanto  of  the 
legacy.     It  is  also  settled  that  whether  the 
gift  is  to  be  considered  an  ademption  of  a  leg- 
acy must  depend  upon  the  intent  of  the  tes- 
tator alone.     A  gift  of  personal  property  to  a 
son  may  be  shown  not  to  have  been  so  in- 
tended, but  the  burden  is  upon  the  legatee. 
Ford  V,  Tynte,  2  Hem,  &  M.  324,     A  gift  to 


TITLE  BY  DEVISE. 


307 


a  stranger  may  be  shown  to  have  been  in- 
tended as  an  ademption,  but  here  the  pre- 
sumption is  the  other  way,  the  burden  being 
uix)u  the  administrator  to  show  such  intent. 
There  can  be  no  doubt  that  a  testator's  con- 
veyance of  real  property  may  constitute  an 
ademption,  if  he  so  intends  it,  e.  g.  where  he 
expresses  the  intent  in  the  conveyance,  and 
possibly  in  other  ways.  If  so,  the  only  sig- 
nificance of  the  doctrine  ejusdem  generis  is  its 
effect  upon  the  presumption.  The  doctrine 
that  the  property  conveyed  must  be  ejusdem 
generis  appears  to  be  the  only  ground  upon 
which  it  can  be  said  that  the  conveyance  in 
this  case  should  not  be  treated  as  satisfac- 
tion pro  tauto.  It  has  been  said  in  early 
cases  that  "when  the  gift  by  will  and  the  por- 
tion are  not  ejusdem  generis,  the  presumption 
will  be  repelled.  Thus,  land  will  not  be  pre- 
sumed to  be  intended  as  a  satisfaction  for 
money,  nor  money  for  land."  Bellasis  v. 
Uthwatt,  1  Atk.  428;  Goodfellow  v.  Burchett, 
2  Vern.  298;  Ray  v.  Stanhope,  2  Ch.  R.  159; 
Saville  v.  Saville,  2  Atk.  458;  Grave  v.  Earl 
of  Salisbury,  1  Brown,  Ch.  425.  But  see  Ben- 
gough  V.  Walker,  15  Ves.  507.  The  courts 
have  not  accepted  without  protest  the  proposi- 
tion that  the  application  of  the  presumption 
arising  from  the  relation  of  parent  and  child 
should  depend  upon  the  similarity  of  the  prop- 
erty willed  and  donated,  and  it  has  been  ask- 
ed "why,  if  a  gift  of  a  thousand  dollars  will 
satisfy  a  legacy  of  that  amount,  it  should  not 
equally  be  satisfied  by  a  donation  of  lands  of 
equal  value."  And  see  Pym  v.  Lockyer,  5 
Mylne  tfc  C.  44.  But  all  agree  that  ademption 
is  a  matter  of  intent.  In  Jones  v.  Mason,  5 
Rand.  (Va.)  577,  the  court  said,  "This  whole 
class  of  cases  depends  upon  the  intention." 
In  Hoskins  v.  Hoskins,  Prec.  Ch.  263,  it  is 
said,  "I  answer,  it  still  shows  that  intention 
is  everything;  ejusdem  generis  nothing."  In 
Chapman  v.  Salt,  2  Vern.  646,  it  was  said, 
"Showing  that  intention  is  everything." 
Again,  "It  is  laid  down  generally  that  a  resid- 
uary legacy  will  not  adeem  a  portion  due  un- 


der a  settlement,  because  it  is  entirely  uncer- 
tain what  that  legacy  may  be.  But  this  rule, 
like  the  rest,  yields  to  intention."  Hickman 
V.  Morgan.  1  Brown.  Ch.  03.  2  Brown,  Ch. 
394.  In  Bongough  v.  Walker,  15  Ves.  507,  it 
was  held  that  a  bequest  of  a  share  in  powder 
works,  charged  with  an  annuity,  was  a  satis- 
faction of  a  portion  of  $2,000,  when  it  was  so 
intended.  See,  also.  Gill's  Estate,  Pars.  Eq. 
Cas.  139.  It  is  forcefully  argued  that  these 
cases  make  obsolete  the  doctrine  of  ejusdem 
generis.  Whether  they  do  or  not,  they  cer- 
tainly show  that  it  must  yield  to  the  testa- 
tor's intent.  We  cannot,  therefore,  accede  to 
the  proposition  of  counsel  for  the  defendants 
"that  the  conveyance  of  real  estate  will  not 
be  held  a  satisfaction  of  any  legacy  in  whole 
or  in  part,  even  though  the  intent  of  the  tes- 
tator is  clear."  We  think  the  testimony 
shows  the  testator's  intent.  There  may  be 
testimony  in  the  record  that  was  incompetent 
to  prove  it,  but  there  is  sufficient  that  was 
competent  The  widow  was  conversant  with 
the  entire  transaction,  and  the  defendaut.s' 
statements  are  admissions  of  their  knowledge 
of  such  intentions. 

It  is  contended  that  "the  allowance  of  a  con- 
veyance of  property  as  a  satisfaction  of  a  de- 
vise or  legacy  would  be  equivalent  to  a  revo- 
cation of  the  will  in  part,  and  it  would  have 
to  be  proven  in  the  manner  provided  by  our 
statute  for  the  revocation  of  wills,  e.  g.  by  the 
destruction  of  the  will,  or  the  making  of  a 
new  will."  How.  Ann.  St.  §  5793;  Lansing 
V.  Hayues,  95  Mich.  16.  54  N.  W.  699.  We 
think  it  should  not  be  called  a  revocation  of 
the  will.  The  defendants'  bequests  are  per- 
mitted to  stand  unquestioned,  and  matter  in 
discharge  of  the  obligation  (i.  e.  payment)  is 
shown.  The  will  is  not  overturned  or  re- 
voked. It  is  satisfied.  We  think  the  prayer 
of  the  bUl  should  be  granted,  and  the  record 
should  be  remanded  to  the  circuit  court  for 
the  county  of  Wayne,  in  chancery,  for  further 
proceedings.  Decreed  accordingly.  The  oth- 
er justices  concurred. 


JOS 


TITLE. 


SALEM   NAT.   BANK  v.   WHITE   et   al. 
(42  N.  E.  312.  159  111.  136.) 

Supreme  Court  of  Illinois.     Nov.  22,  1895. 

Appeal  from  circuit  court,  Marion  county; 
B.   R.   Burroughs,  Judge. 

Bill  by  the  Salem  National  Bank  against 
Susan  White,  Joseph  I.  White,  and  others, 
to  foreclose  a  mortgage,  and  cross  bill  by 
Susan  and  Joseph  I.  White  for  partition. 
Cross  complainants  obtained  a  decree.  The 
bank  appeals.     Reversed. 

L.  M.  Kagy,  for  appellant.  Henry  C. 
Goodnow,  for  appellees. 

MAGRUDER,  J.     Section  10  of  chapter  39  of 
the  Revised  Statutes,  being  "An  act  in  regard  to 
the  descent  of  property,"  provides  as  follows:  "If 
after  making  a  last  will  and  testament  a  child 
shall  be  born  to  any  testator  and  no  provision 
be  made  in  such  will  for  such  child,  the  will 
shall  not  on  that  account  be  revoked,  but  un- 
less it  shall  appear  by  such  will  that  it  was 
the    intention    of    the    testator    to    disinherit 
such  child,  the  devises  and  legacies  by  such 
will   granted   and  given   shall   be  abated   in 
equal  proportions  to  raise  a  portion  for  such 
child  equal  to  that  which  such   child  would 
have  been  entitled  to  receive  out  of  the  es- 
tate of  such  testator  if  he  had  died  intes- 
tate."   etc.     1    StaiT   &    C.    Ann.    St.    p.    8^3. 
William  White,   the  testator,  made  his  will 
on  June  8,  1860,  devising  all  of  the  reux  . 
tate,    except   the   strip   two    feet   wide,    em- 
braced in  the  mortgage  to  appellant,  to  his 
widow,  Susan  White,  and  his  three  children, 
William  W.  White,  Cleopatra  C.  White,  and 
Lillie  P.  White.     On  March  12,  1862,  another 
son,  the  appellee  Joseph  I.  White,  not  men- 
tioned in  the  will,  was  born  to  the  testator. 
The    testator   died    on    December    13,    1803, 
without  changing  or  amending  his  will,  and 
his  will  was  duly  probated.     It  does  not  ap- 
pear by  the  will  that  WilUam  White  intend- 
ed to  disinherit  Joseph  I.  White.     It  follows 
that  the  devise  of  the  mortgaged  premises, 
except  the  said  strip,   should  be   abated,  to 
raise  a  portion  for  appellee  Joseph  I.  White, 
equal  to  that  which  he  would  have  been  enti- 
tled to  receive  out  of  the  estate  of  William 
White,  if  the  latter  had  died  intestate.    In 
other  words,  under  the  construction  given  to 
the  foregoing  statute  by  this  court;  in  Ward 
V.  Ward,  120  111.  Ill,  11  N.  E.  336,  Joseph  I. 
White  is  entitled  to  an  undivided  one-fourth 
part    of   that   portion   of   the   premises    em- 
braced in  the  mortgage  of  which  his  father 
died  seised,   and   which  was   devised  to   his 
mother  and  his  brother  and  sisters,  subject 
to  the  dower  therein  of  his  mother,  the  wid- 
ow, Susan  White.     As  Susan  White  obtained 
a  conveyance  from  her  thi'ee  children.  Wil- 
liam, Cleopatra,  and  Lillie,   of  their   respec- 
tive interests  in  the  portion  of  the  mortgaged 
premises  devised  to  them,  the  mortgage  exe- 
cuted by  her  to  appellant  covered  an  undivid- 
ed three-fourths  of  such  portion,  but  did  not 
cover    the    undivided    one-fourth    owned    by 


Joseph  L  White.  We  are,  therefore,  of  the 
opinion  that  the  decree  of  the  circuit  court 
was  correct  in  directing  the  mortgage  to  be 
enforced  against  the  interest  of  Susan  White 
alone,  and  not  against  the  interest  of  Joseph 
I.  White. 

1.  It   is    claimed    by   appellant    that    Mrs. 
White  and  her  son  Joseph  are  estopped  from 
claiming  that  the  interest  of  Joseph  is  free 
from  the  lien  of  the  mortgage.     So  far  as 
Mrs.  White  is  concerned,  she  is  not  claiming 
Joseph's  interest  for  herself.     Whatever  acts 
or  conduct  on  her  part  might  estop  her  from 
claiming  the  one-fourth  interest  not  embraced 
in  the  mortgage,  it  cannot  be  said  that  her 
son  Joseph  is  in  any  way  bound  by  her  acts 
and  conduct.     The  owner,  imder  the  law,  of 
one-fourth  interest,  he  never  signed  the  mort- 
gage,  and,  tr  erefore,  did  not  part  with  bis 
interest,  or  subject  it  to  the  lien  of  the  mort- 
gage.    We  find  nothing  in  the  evidence  which 
established    any     estoppel     or    acquiescence 
against   Joseph,   or  makes  it  inequitable   in 
any  way  for  him  to  assert  his  ownership  in 
the  property.     The  officers  of  the  appellant 
bank  and  the  holders  of  the   mortgages   of 
1889  and  1877  lived  in  Salem,  where  William 
White  lived  in   his   lifetime,  and   where  his 
widow   and  children   lived   after  bis   death. 
They  knew  Joseph  I.  White  as  a  boy,   and 
after  he  became  of  age,  and  knew  that  he 
was   a   son   of    William    White   and    Susan 
White.     The  record  of  the  title  to  the  mort- 
gaged property,  of  which  the  holders  of  the 
mortgage  were  bound  to  take  notice,  showed 
the  will  of  William  White,  and  that  it  men- 
tioned   only    three    of    his   children,    and   it 
showed,   also,    that   Joseph   I.    White   never 
imited  with  the  other  three  children  in  the 
conveyance  to  his  mother.     We  think   that, 
under  the  testimony,  the  bank  was  not  only 
affected  with  constinictive  notice  of  the  out- 
standing interest  in  Joseph  I.  White   when 
they  accepted  the  mortgage,  but  that  it  had 
actual  notice  of  such  interest.    We  are  aware, 
however,  of  no  principle  of  law  by  which  a 
purchaser  or  mortgagee  of  the  interests  of  all 
the  tenants  in  common  in  a  piece  of  land, 
except  one,  can  appropriate  the  interests  of 
that  one.  whether  they  did  or  did  not  have 
notice   of  such   interest  at  the  time  of  the 
purchase  or  mortgage.     If  there  is  any  spe- 
cies of  estoppel  which  can  be  set  up  against 
Joseph  I.  White,  it  must  be  estoppel  by  con- 
duct.    "When  a  person,  by  his  words  or  con- 
duct, voluntarily  causes  another  to  believe  in 
the  existence  of  a  certain  state  of  things,  and 
induces  him  to  act  upon  that  belief,  so  as  to 
change    his    previous    position,    he    will    be 
estopped  to  aver  against  the  latter  a  different 
state  of   things."     People  v.   Brown,   67  111. 
435.     To   constitute  estoppel  by   conduct,    it 
must  appear  that  there  was  a  representation 
concerning   material    facts,    made,   with    the 
knowledge  of  the  facts,  to  a  party  ignorant 
of  the  truth  of  the  matter,  with  the  intention 
that  it  should  be  acted  upon;    and  it  must  ap- 
pear   that    it    was    acted    upon.     Fraud,    or 


TITLE  BY  DESCENT. 


3uy 


■something  tantamount  thereto,  is  said  to  be 
a  distinctive  characteristic  of  this  kind  of 
estoppel.  People  v.  Brown,  supra;  Flower 
V.  El  wood,  66  111.  438;  Powell  v.  Rogers,  105 
111.  318.  Joseph  I.  White  did  not  become  of 
age  until  March,  1883.  He  was  away  from 
Salem  at  school  5  or  6  years.  He  left  Salem 
altogether  at  the  age  of  23  years,  to  go  to 
California,  where  he  has  since  resided.  He 
neither  said  nor  did  anything,  nor  made  any 
representations  w-hich  induced  the  holders  of 
the  mortgage  of  1889,  or  the  holders  of  the 
previous  mortgage  of  1877,  to  believe  or  act 
in  any  such  way  as  to  change  their  previous 
position,  or  to  justify  them  in  claiming  an 
■estoppel  against  him. 

2.  It  is  said  that  the  mortgage  executed  by 
Susan  White  in  1889  covered  the  interest 
of  Joseph  I.  White  because  of  the  power  of 
attorney  executed  by  Joseph  and  his  brother 
and  sisters  to  his  mother  in  June,  1884,  au- 
thorizing her  to  sell  and  convey  certain  real 
estate,  including  that  embraced  in  the  mort- 
gage. The  contention  of  appellant  is  that 
Mrs.  White  had  authority  to  mortgage,  be- 
■cause  the  power  of  attorney  gave  her  au- 
thority to  sell  and  convey.  The  mortgage 
was  executed  by  her  alone,  in  her  own  name, 
and  not  as  attorney  or  agent  of  hfer  son 
Joseph.  She  does  not  describe  herself  as 
agent  in  the  body  of  the  instrument,  nor  sign 
it  as  agent  or  attorney.  There  is  nothing 
upon  the  face  of  the  mortgage  to  indicate 
that  the  mortgagor  intended  to  convey  any 
other  Interest  than  that  owned  by  herself. 
The  general  rule  is  that,  in  order  to  bind  the 
principal  by  a  deed  made  by  an  agent,  the 
deetl  must  not  be  made  by  the  agent  in  his 
own  name,  but  must  purport,  upon  its  face,  to 
^e  made,  signed,  and  sealed  in  the  name  of 
the  principal.  Story,  Ag.  (9th  Ed.)  §  148;  Me- 
chem,  Ag.  §§  419,  420.  But,  aside  from  the 
general  rule  thus  stated,  we  do  not  think 
that,  under  the  circumstances  of  this  case, 
the  power  of  attorney  to  sell  and  convey  car- 
ried with  it  the  pow-er  to  mortgage.  It  is 
true  that,  in  some  cases,  a  power  to  sell  for 
the  purpose  of  raising  money  will  imply  a 
power  to  mortgage;  and  in  cases  of  wills, 
where  the  power  is  conferred  upon  the  ex- 
ecutor to  sell  such  parts  of  the  land  as  he 
shall  deem  proper  for  the  purpose  of  paying 
debts  and  making  improvements,  such  power 
to  sell  has  been  held  to  include  the  power  to 
mortgage.  But  here  there  was  no  evidence 
of  any  intention,  on  the  part  of  those  execut- 
ing the  power  of  attorney,  that  the  power  of 
sale  was  conferred  for  any  of  the  purposes 
thus  specified.  In  case  of  an  ordinary  power 
of  attorney  to  sell  land  and  make  deeds  to 
the  land  sold,  the  power  to  sell  conveys  no 
implied  authority  to  mortgage.  Mechem, 
Ag.  §  323;  1  Am.  &  Eng.  Enc.  Law,  p.  360; 
Jeffrey  v.  Hursh,  49  Mich.  31,  12  N.  W.  898. 
In  Jeffrey  v.  Hursh,  supra,  Mr.  Justice  Cool- 
ey  says:  "The  principal  determines  for  him- 
self what  authority  he  will  confer  upon  his 
■agent,  and  there  can  be  no  implication,  from 


his  authorizing  a  sale  of  his  lands,  that  he 
intends  that  his  agent  may,  at  discretion, 
charge  him  with  the  responsibilities  and  du- 
ties of  a  mortgagor,"— and  cites  many  cases 
in  support  of  this  position.  Hence,  we  are 
of  the  opinion  tliat  the  execution  of  the  pow- 
er of  attorney  to  sell  does  not  lead  to  the 
concuision  that  Mrs.  White  mortgaged  the 
interest  of  her  son  Joseph. 

3.  It  is  claimed  that  the  bank,  as  mort- 
gagee, is  entitled  to  the  increased  value  of 
Joseph's  one-fourth  interest  caused  by  the 
improvements  placed  upon  the  property.  In 
order  to  understand  this  contention,  it  will  be 
necessary  to  refer  briefly  to  some  of  the  facts. 
When  Mrs.  White  and  her  three  eldest  chil- 
dren, William,  Cleopatra,  and  Lillie,  made  the 
trust  deed  to  Goodnow  in  1877,  it  was  to  se- 
cure .$.'3,000,  borrowed,  nominally,  from"  one 
Martin,  but  really  from  appellant;  and  this 
sum  of  .$.",0(X),  together  with  .?1,000  subse- 
quently borrowed  from  the  bank  or  one  of  its 
customers,  was  used  in  improving  the  prem- 
ises described  in  the  mortgage  by  the  erec- 
tion of  a  brick  building  thereon.  This  im- 
provement was  for  the  benefit  of  the  prop- 
erty, and  seems  to  have  been  necessai-y.  The 
premises  were  in  the  business  part  of  the 
town,  and  the  buildings  upon  them  had  be- 
come old  and  dilapidated,  so  that  they  could 
not  be  rented  to  advantage.  The  old  frame 
buildings  were  removed,  and  a  new  brick 
structure  was  erected.  While  there  is  no  posi- 
tive testimony  that  Joseph  I.  White  was  con- 
sulted about  the  erection  of  the  new  building, 
or  that  he  formally  consented  to  it,  yet  he 
knew  of  it,  and  made  no  objection  to  it,  and 
received  a  diiect  benefit  from  it.  in  the  use, 
by  his  mother,  of  the  rents  derived  from  it 
for  his  support  and  education.  The  new  mort- 
gage, made  by  Mrs.  White  in  1889,  after  she 
had  received  the  deed  of  their  interests  from 
the  three  oldest  children,  was  to  secure,  not 
a  new  indebtedness,  but  the  old  indebtedness 
of  $6,000  above  mentioned,  together  with  ac- 
cumulated interest,  taxes,  insurance,  etc.  The 
second  mortgage  was  executed  for  the  pur- 
pose of  taking  up  the  old  notes,  given  to  se- 
cure borrowed  money  used  in  improving  the 
property.  The  mortgage  of  1889  was.  there- 
fore, a  mere  continuation  of  the  mortgage  of 
1877,  and  represented  loans  of  money  that 
were  expended  in  improvements  upon  the 
premises.  A  mere  change  in  the  form  of  the 
evidence  of  the  debt,  not  intended  to  operate 
as  a  payment,  will  not  affect  the  mortgage 
lien.  Flower  v.  Elwood,  66  111.  438;  Camp- 
bell V.  Trotter,  100  111.  281.  When  the  mort- 
gage of  1889  was  executed  to  secure  an  in- 
debtedness representing  money  used  in  im- 
proving the  property,  Susan  White  and  Joseph 
I.  White  were  tenants  in  common,  she  own- 
ing three-fourths  and  he  one-fourth.  He  was 
a  tenant  in  common  with  the  other  children 
when  the  mortgage  of  1877  was  made.  If  his 
interest  in  the  land  was  made  more  valuable 
by  reas^on  of  the  improvements,  and  will  sell 
for   more  at  the   partition   sale  on   that   ac- 


310 


TITLE. 


count,  it  would  seem  to  be  just  that  he  should 
make  compensation.  The  doctrine,  in  equity, 
is  that,  when  improvements  have  been  made 
by  one  tenant  in  common,  the  portion  im- 
proved should,  if  practicable,  be  assigned  to 
him  in  the  partition  of  the  estate;  and  when 
such  a  division  cannot  be  made,  he  should 
be  allowed  a  reasonable  remuneration  from 
those  who  receive  the  benefits  of  the  im- 
provement. Where  the  premises  are  sold  be- 
cause they  are  not  susceptible  of  division, 
the  tenant  in  common  making  the  improve- 
ment should  be  allowed  the  actual  increase  of 
the  price  received  at  the  sale  in  consequence 
of  the  improvement  made.  Louvalle  v.  Men- 
ard, 1  Gilman,  39;  Howey  v.  Goings,  13  111. 
95;  Dean  v.  O'Meara,  47  111.  120;  Kurtz  v. 
Hibuer,  55  111.  514;  Mahoney  v.  Mahoney,  65 
111.  406.  In  the  case  at  bar,  appellee  Joseph 
I.  White  should  be  charged,  as  between  him 
and  his  cotenant,  Susan  AVhite,  with  such  in- 
crease in  the  amount  which  his  one-fourth  in- 
terest in  the  land  shall  "bring  at  the  sale  as 
results  from  the  fact  of  its  being  improved. 
Cooter  v.  Dearborn,  115  111.  509,  4  N.  E.  3SS. 
If  Mrs.  White  is  entitled  to  such  increase, 
laer  lieu  therefor  pass^  to  appellant  by  virtue 
of  the  mortgage  executed  by  her.  Improve- 
ments placed  on  real  estate  by  the  mort- 
gagor inure  to  the  benefit  of  the  mortgagee, 
and  so,  if  one  tenant  in  connuon  places  im- 
provements upon  the  common  property,  and 
thereby  acquires  a  lien  on  his  cotenant's  in- 
terest for  a  proportionate  share  of  the  in- 
crease in  value  caused  by  the  impi'ovement, 
it  will  be  an  accession  to  his  interest,  which 
will  be  subject  to  a  mortgage  given  by  him 
on  the  property,  and  will  pass  to  the  mort- 
gagee, to  the  same  extent,  in  the  same  man- 
ner, and  for  the  same  reasons  that  the  im- 
provements became  liable  to  the  lieu  of  the 
mortgage.  Baird  v.  Jackson,  98  111.  78.  In 
other  words,  the  mortgagee  is  entitled  to  be 
subrogated  to  the  lien  of  the  mortgage  im- 
proving the  property,  as  tenant  in  common, 
for  such  proportionate  share  of  increase  in 
value  or  price  as  inures  to  the  benefit  of  the 
other  tenant  in  common  hj  reason  of  the  im- 
provements. Lagger  v.  Association,  146  111. 
283,  33  N.  E.  946.  We  are,  therefore,  of  the 
opinion  that  the  decree  of  the  x;*ourt  below  is 
erroneous  in  not  providing  that  there  should 
be  paid  to  the  appellant,  out  of  the  proceeds 


of  the  sale  of  the  interest  of  Joseph  I.  White 
in  the  premises,  such  proportion  of  such  pro- 
ceeds as  shall  represent  the  increase  added  to 
the  amount  of  the  sale  of  said  interest  by  rea- 
son of  the  improvements. 

4.  As  we  understand  the  evidence,  the  own- 
ership of  Mrs.  White  and  her  children  in  the 
strip  two  feet  wide  covered  by  the  mortgage 
was  not  derived  from  the  deceased  testator, 
William  White,  but  was  conveyed  to  them, 
after  his  death,  by  one  Richard  Atkin  and 
wife.  On.  June  22,  1877,  Atkin  executed  a 
deed  conveying  the  strip  to  Mrs.  White  and 
the  four  children.  By  this  deed  Joseph  I. 
White  became  the  owner  of  only  one  undivid- 
ed one-fifth  part  of  the  strip.  The  decree,  cor- 
rectly, finds  him  to  be  the  owner  of  one  un- 
divided one-fourth  part  of  all  the  mortgaged 
premises,  except  the  strip  in  question,  but  the 
decree  is  manifestly  erroneous  so  far  as  it 
finds  him  to  be  the  owner  of  one-fourth  of 
the  strip,  instead  of  finding  him  to  be  the 
owner  of  one-fifth  thereof.  The  decree  should, 
therefore,  be  corrected  in  this  respect,  so  as 
to  conform  to  the  proof. 

5.  Mrs.  White  was  entitled  to  dower  in  the 
one-fourth  part  of  the  mortgaged  premises 
(except  the  sti-ip)  owned  by  her  son  Joseph. 
Ward  v.  Ward,  supra.  But  her  dower  in  this 
interest  did  not  pass  to  the  appellant  as  mort- 
gagee by  reason  of  the  mortgage.  The  mort- 
gage did  not  convey  Joseph's  interest.  There 
is  nothing  to  show  that  the  dower  therein  was 
ever  assigned.  Dower  may  be  released  ta 
the  owner  of  the  fee,  but  no  other  disposition 
can  be  made  of  it  until  it  has  been  set  apart. 
Best  V.  Jenks,  123  111.  447,  15  N.  E.  173.  The 
right  of  dower,  in  a  widow,  is  no  estate  in 
the  land  until  it  has  been  assigned,  but  it  is 
a  right  resting  in  action  only,  and  cannot  be 
aliened.  McNeer  v.  McNeer,  142  111.  388,  32 
N.  E.  681.  We  do  not  agree  with  counsel  for 
appellant  in  his  contention  that  the  bank  is 
entitled  to  a  lien  on  said  dower  interest,  but 
regard  the  decree  as  correct  in  not  awarding 
such  lien.  By  reason  of  the  two  errors,  in. 
regard  to  the  improvements,  and  the  extent 
of  the  outstanding  interest  in  the  strip  de- 
scribed in  the  mortgage,  the  decree  will  be 
reversed;  and  the  cause  is  remanded  to  the 
circuit  court  for  further  proceedings  in  ac- 
cordance with  the  views  herein  expressed^ 
Reversed  and  remanded. 


TITLE  BY  DESCENT. 


Lll 


In  re  CARPENTER'S  ESTATE. 

(32  Atl.  637,  170  Pa.  St.  203.) 

Supreme  Court  of  Pennsylvania.     July  18,  1895. 

Appeal  from  orphans'  court,  Juniata  coun- 
ty;   Lyons,  Judge. 

In  the  matter  of  the  estate  of  James  Car- 
penter, deceased.  From  the  order  of  dis- 
tribution, A.  M.  Carpenter,  a  collateral  heir, 
appeals.     Affirmed. 

James  Caiijenter,  the  decedent,  was  mur- 
dered by  his  son,  J.  B.  Cai-penter,  in  order 
that  the  son  might  get  immediate  poSvSession 
of  the  father's  estate  under  the  statute  of 
distributions.  The  widow  became  an  acces- 
sory after  the  fact.  After  the  commission 
of  the  crime,  the  mother  and  son  conveyed 
their  interests  in  the  property  to  the  attor- 
neys who  defended  them  in  the  prosecution 
for  murder.  The  collateral  heirs  of  decedent 
contend  that  neither  mother  nor  son  could 
take  any  interest  in  the  estate,  by  reason 
of  their  crime. 

J.  Howard  Neely  and  W.  U.  Hens^l,  for 
appellant.  J.  C.  Bucher,  W.  H.  Sponsler 
and  J.  N.  Keller,  in  pro.  per. 

GREEN,  J.  The  penalty  for  murder  in 
the  first  degree  in  Pennsylvania  is  death  by 
hanging.  No  confiscation  of  lands  or  goods, 
and  no  deprivation  of  the  inheritable  quality 
of  blood,  constitutes  any  part  of  the  penalty 
of  this  offense.  The  declaration  of  rights 
(article  1,  §  18,  of  the  constitution  of  the 
state)  declares  that  "no  person  shall  be  at- 
tainted of  treason  or  felony  by  the  legis- 
latm-e,"  and  by  section  19  it  is  provided  that: 
"No  attainder  shall  work  coiTuption  of  blood, 
nor,  except  during  the  life  of  the  offender, 
forfeiture  of  estate  to  the  commonwealth. 
The  estate  of  such  persons  as  shall  destroy 
their  own  lives,  shall  descend  or  vest  as  in 
cases  of  natural  death;  and  if  any  person 
shall  be  killed  by  casualty,  there  shall  be  no 
forfeiture  by  i-eason  thereof."  These  are 
provisions  of  the  organic  law  which  may 
not  be  transcended  by  any  legislation.  I'n- 
asmuch  as  the  prescribed  penalty  for  murder 
is  death  by  hanging  (Crimes  Act  1S60,  §  75; 
Brightly,  Purd.  Dig.  p.  429,  pi.  142),  without 
any  forfeiture  of  estate  or  corruption  of 
blood,  it  cannot  be  said  that  any  such  con- 
sequences can  be  lawfully  attributed  to  any 
such  offense.  In  other  words,  our  constitu- 
tion positively  prohibits  any  attaint  of  trea- 
son or  felony  by  the  legislature,  and  any  cor- 
ruption of  blood  by  reason  of  attainder,  or 
any  forfeiture  of  estate,  except  duiing  the 
life  of  the  offender.  The  legislature  has 
never  imposed  any  penalty  of  corruption  of 
blood  or  forfeiture  of  estate  for  the  crime  of 
murder,  and  therefore  no  such  penalty  has 
any  legal  existence.  In  the  case  now  under 
consideration  it  is  asked  by  the  appellant 
that  this  court  shall  decree  that  in  case  of 
the  murder  of  a  father  by  his  son  the  in- 
heritable quality  of  the  son's  blood  shall 
be  taken  from  him,  and  that  his  estate,  un- 


der the  statute  of  distributions,  shall  be 
forfeited  to  others.  We  are  unwilling  to 
make  any  such  decree,  for  the  plain  reason 
that  we  have  no  lawful  power  so  to  do. 
The  intestate  law  in  the  plainest  words 
designates  the  persons  who  shall  succeed  to 
the  estates  of  deceased  intestates.  It  is 
impossible  for  the  courts  to  designate  any 
different  persons  to  take  such  estates  with 
out  violating  the  law.  We  have  no  possi- 
ble warrant  for  doing  so.  The  law  says, 
if  there  is  a  son,  he  shall  take  the  estate. 
How  can  we  say  that,  although  there  is  a 
son,  he  shall  not  take,  but  remote  relatives 
shall  take,  who  have  no  right  to  take  it  if 
there  is  a  son?  From  what  source  is  it 
possible  to  derive  such  a  power  in  the  courts? 
It  is  argued  that  the  son  who  murders  his 
own  father  has  forfeited  all  right  to  his 
father's  estate,  because  it  is  his  own  wrong- 
ful act  that  has  terminated  his  father's  life. 
The  logical  foundation  of  this  argument  is, 
and  must  be,  that  it  is  a  punishment  for  tlie 
son's  wrongful  act.  But  the  law  must  fix 
punishments;  the  courts  can  only  enforce 
them.  In  this  state  no  such  punishment 
as  this  is  fixed  by  any  law,  and  therefore 
the  courts  cannot  impose  it.  It  is  argueil, 
however,  that  it  would  be  contraiT  to  public 
policy  to  allow  a  parricide  to  inherit  his 
father's  estate.  Where  is  the  authority  for 
such  a  contention?  How  can  such  a  propo- 
sition be  maintained  when  there  is  a  posi- 
tive statute  which  dLsposes  of  the  whole 
subject?  How  can  there  be  a  public  policy 
leading  to  one  conclusion  .when  there  is  a 
positive  statute  directing  a  precisely  opposite 
conclusion?  In  other  words,  when  the  im- 
perative language  of  a  statute  prescribes 
that  upon  the  death  of  a  person  his  estate 
shall  vest  in  his  children,  in  the  absence  of 
a  will,  how  can  any  doctrine,  or  principle, 
or  other  thing,  called  "public  policy,"  take 
away  the  estate  of  a  child,  and  give  it  to 
some  other  person?  The  intestate  law  casts 
the  estate  upon  certain  designated  persons, 
and  this  is  absolute  and  peremptoiy ;  and 
the  estate  cannot  be  diverted  from  those 
persons,  and  given  to  other  persons,  without 
violating  the  statute.  There  can  be  no  pub- 
lic policy  which  contravenes  the  positive  lan- 
guage of  a  statute.  The  supposed  analogies 
derived  from  the  fraudulent  abuse  of  a  con- 
tract right,  or  an  actual  notice  accomplish- 
ing the  same  result  as  a  constructive  notice 
under  the  recording  acts,  or  the  waiver  of 
an  exemption  act  by  one  entitled  to  its  bene- 
fits, and  other  instances  of  a  similar  charac- 
ter, are  no  analogies  at  all.  There  may  be 
reasons  why  a  statutoiy  provision  maj-  not 
be  applicable  in  a  given  case  when  the  pur- 
pose of  the  statute  is  subsei-ved  in  a  different 
mode,  or  dispensed  with  altogether;  but  here 
is  a  contingency  which  does  not  depend 
upon  any  act,  or  omission  to  act,  of  any  per- 
son whatever.  It  is  th3  act  of  the  law 
which  casts  the  descent  of  estates,  and  that 
is  not  regulated  or  controlled  by  the  acts, 


312 


TITLE. 


the  follies,  the  frauds,  or  the  crimes  of  any 
individual  persons.  Unless  the  law  itself 
contains  some  qualification  which  changes 
its  application,  or  provides  some  disqualifi- 
cation by  way  of  penalty,  it  must  have  its 
way,  because  there  is  no  other  way. 

If  we  consider  the  question  upon  authority, 
we  find  the  great  preponderance  of  judicial 
decision  in  accord  with  the  views  above  ex- 
pressed.    In   view   of  the  dreadful  and  un- 
natm-al  character  of  the  crime  of  the  son  in 
this  case,  it  is  not  a  matter  of  wonder  that 
the  precise  question  has  never  yet  been  before 
us,  and  that  there  is  a  dearth  of  authority 
among  the  tribunals  upon  such  a  subject     In 
the  case  of  Owens  v.  Owens,  100  N.  C.  242,  6 
S.  E.  794,  Sarah  Owens  was  convicted  of  being 
an  accessory  before  the  fact  to  the  murder  of 
her  huslxind.     She  was  sentenced  to  impris- 
onment for  life,  and  while  undergoing  her 
sentence  she  petitioned  the  com-t  to  assign 
her  dower  in  the  real  estate  of  her  deceased 
husband.     In  allowing  her  petition  the  com-t 
said:  "We  are  unable  to  find  any  suflicient 
grounds  for  denying  to  the  petitioner  the  re- 
lief she  demands,  and  it  belongs  to  the  law- 
making power  alone  to  prescribe  additional 
grounds  of  forfeiture  of  the  right  which  the 
law  itself  gives  to  a  surviving  wife.     For- 
feitures of  property  for  crime  are  unknown  to 
our  law,  nor  does  it  intercept  for  such  cause 
the  transmission  of  an  intestate's  property  to 
heirs  and  distributees,  nor  can  we  recognize 
any   such  operating  principle."     In  Deem  v. 
Millikin,   6   Ohio   Cir.   Ct.    R.   357,   the  facts 
were   that    Elmer  L.    Sharkey   murdered  his 
mother  for  the  pui-pose  of  succeeding  to  the 
title  to  her  real  estate.     He  was  convicted 
and  hanged  after  having  mortgaged  the  real 
estate.     The  collateral  heirs  contended  that 
by  reason  of  his  crime  no  interest  had  passed 
to  the  son  and  therefore  the  mortgages  were 
void.     In  the  opinion  the  court   said:  "The 
statute    of    descent    neither    recognizes    mis- 
chief nor  provides  a  remedy.     It  is  a  legis- 
lative declaration  of  a  rule  of  public  policy. 
*     *     *     There    should   be   no   difficulty    in 
distinguishing  this  case  from  those  in  which 
the  rights  asserted  have  no  foundation  other 
than  the  fraudulent  or  unlawful  conduct  of 
a  contracting  party,  nor  from  those  in  which 
attempts  are  made  to  use  the  process  of  the 
courts     for     fraudulent     pui-poses.     *     *     * 
The  natural  inference  is  that  when  the  legis- 
lature incorporated  the  general  rule  into  the 
statute,  and  omitted  the  exception,  they  in- 
tended  that    there   should   be   no    exception 
to  the    rule   of    inheritance   prescribed."     In 
the  case  of  Shellenberger  v.  Kansom,  59  N. 
W.    Rep.    935,    the    supreme    court    of    Ne- 
braska,   reversing    its   own   former    decision 
reported  in  47  N.  W.  700,  held  that  the  mur- 
derer did  not  forfeit  the  estate  of  his  daugh- 
ter,  whom   he  had   murdered    in  order  that 
he  might  acquire  the  title  to  her  real  estate. 
At  the  first  hearing  the  court  followed  the 
decision  of  a  majority  of  the  New  York  court 
of  appeals  in  Riggs  v.  Palmer,  115  N.  Y.  506, 


22  N.  E.  ISS,  but  changed  their  ruling  on  the 
reargument  in  1894.     In  delivering  the  sec- 
ond opinion  the  court  says:  "The  conclusion 
reached  by  the  reasoning  of  Judge  Earle  in 
Riggs  V.  Palmer,  as  well  as  that  in  this  case, 
was  based  very  largely  on  that  species  of  ju- 
dicial legislation  above  characterized  as  'ra- 
tional construction.'     If  courts  can  thus  en- 
large statutoi-y  enactments  by  construction, 
it  may  be  that  the  references  in  the  majority 
opinion  in  Riggs  v.  Palmer  to  the  provisions 
of  the  civil  law  were  very  apt  as  illustrating 
how,  by  rational  interpretation,  our  statute 
should  be  made  to  read.    *     *     *     The  legis- 
lature has  spoken.     Their  intention  is   free 
from  doubt,  and  their  will  must'  be  obeyed. 
'It  may  be  proper,'  it  has  been  said  in  Ken- 
tucky, 'in  giving  a  construction  to  a  statute, 
to  look  to  the  effects  and  consequences,  when 
its  provisions  are  ambiguous,   or  the   legis- 
lative intent  is  doubtful.     But  when  the  law 
is  clear  and  explicit,  and  its  provisions  are 
susceptible    of    but    one    interpretation,    its 
conseft[ueuces,  if  evil,  can  only  be  avoided  by 
a  change  of  the  law  itself,  to  be  effected  by 
legislative,   and  not  judicial,   action.'  "     The 
case  of  Rigigs  v.  Palmer  was  decided  by  a 
divided  court,  but  it  was  a  case  of  devise, 
and   not  of  descent,  and  involved  only  the 
question  of  permitting  a  devisee  to  take  title 
under  the  will  of  a  testator  whom  he  had 
murdered  in  order  to  get  the  property  devised 
to  him  by  the  will.     While  we  do  not  agree 
to  the  conclusion  reached,  the  case  only  in- 
volved the  operation  of  a  private  gi-ant,  and 
therein  differs  widely  from  a  case  in  which 
the  statutory  law  of  descent  is  in  question. 
In  the  former  case  it  was  only  necessary  to 
set  aside  an  instrument  between  private  par- 
ties on  the  ground  of  fraud,  but  in  the  latter 
it  would  be  necessary  to  set  aside  the  positive 
law  of  the  state.     The  case  of  Insurance  Co. 
V.  Armstrong,  117  U.  S.  591,  6  Sup.  Ct.  877. 
cited  for  the  appellant,  merely  decided  that 
proof  that  the  assignee  of  a  policy  of  life  in- 
surance caused  the  death  of  the  assured  by 
felonious  means  was  sufficient  to  defeat  a  rcr 
covery  on  the  policy.     Mr.  Justice  Field,  de- 
livering the  opinion,   said:  "It   would  be   a 
reproach  to  the  jurispiiidence  of  the  counti-y 
if  one  could  recover  insurance  money  paya- 
ble on  the  death  of  a  party  whose  life  he  had 
feloniously    taken.     As    well    might    he   re- 
cover insurance  money  upon  a  building  that 
he  has  willfully  fired,"  thus  showing  that  tht 
decision  was  based  entirely  upon  the  ground 
of  fraud  upon  a  contract  right.     The  case  of 
Cleaver  v.    Association   [1892]    1   Q.   B.   147, 
also  cited  for  appellaxit,  is  of  an  entirely  sim- 
ilar character.     It  was  an  attempt  to  enforce 
a   trust  in  favor   of  one  who   had   brought 
about  the  conditions  essential  to  its  fulfill- 
ment by  killing  the  person  whose  death  made 
it  operative.     Lord  Justice  Fry  said  in  the 
opinion:  "If  no  action  can  arise  from  fraud, 
it  seems  impossible  to  suppose  it  can  arise 
from    felony   or  misdemeanor."     In    the   ar- 
gument for  the  appellant  no  case  is   cited 


TITLE  BY  DESCENT. 


313 


which  presents  the  very  question  which  arises 
on  this  record.  But  there  are  at  least  the 
three  cases  above  cited  which  do  involve  the 
same  question  as  this,  and  they  are  all  de- 
cided against  the  contention  of  the  appellant. 
These  authorities  appear  to  us  to  be  far  more 
in  consonance  with  sound  principle  than  those 
which  are  seemingily,  though  not  really,  of 
an  opposite  tendency,  and  they  certainly  har- 
monize with  tlie  views  we  entertain.  The 
assignments  of  error  are  not  sustained.  The 
decree  of  the  court  below  is  afHrmed,  and  the 
appeal  is  dismissed,  at  the  cost  of  the  appel- 
lant 


WILLIAMS,  J.  I  concur  In  the  disposi- 
tion of  so  much  of  the  fund  as  is  derived  from 
the  estate  of  Mrs.  Carpenter,  who  was  con- 
victed only  of  being  an  accessory  after  the 
fact  to  the  murder  of  her  husband.  I  dissent 
from  the  disposition  of  so  much  of  it  as  is 
derived  from  the  alleged  estate  of  the  son, 
who  was  convicted  of  murder,  and  whose 
crime  was  committed  for  the  purpose  of  se- 
curing the  property  of  his  father.  The  sou 
could  not,  by  his  own  felony,  acquire  the 
property  of  his  father,  and  be  protected  by 
the  law  in  the  possession  of  the  fruits  of  hi;> 
crime. 


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